ERIN G. GABBARD, et al. v. MADISON LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, et al.
CASE NO. CA2019-03-051
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
March 30, 2020
2020-Ohio-1180
RINGLAND, J.
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS, Case No. 2018-09-2028
Frost Brown Todd LLC, Thomas B. Allen, W. Joseph Scholler, Alexander L. Ewing, Brodi J. Conover, Matthew C. Blickensderfer, 9277 Centre Pointe Drive, Suite 300, West Chester, Ohio 45069, for appellees
Cooper & Elliott, LLC, C. Benjamin Cooper, Sean R. Alto, 2175 Riverside Drive, Columbus, Ohio 43221, urging reversal for amicus curiae Experts in School Safety and Firearms Training
James P. Sean Maloney, 8917 Eagle Ridge Court, West Chester, Ohio 45069 and Law Office of Ronald Lemieux, Inc., Ronald Lemieux, P.O. Box 19183, Cleveland, Ohio 44119, urging affirmance for amicus curiae Buckeye Firearms Foundation, Inc.
Vorys, Sater, Seymour and Pease LLP, Daniel E. Shuey, 52 East Gay Street, P.O. Box 1008, Columbus, Ohio, 43216, urging affirmance for amicus curiae Professor Peter M. Shane
RINGLAND, J.
{¶ 1} Appellants, Erin Gabbard and several other parents of students enrolled in the Madison Local School District (collectively, “Gabbard“), appeal from the decision of the Butler County Court of Common Pleas granting summary judgment to Madison Local School District Board of Education and Madison Local School District Superintendent Dr. Lisa Tuttle-Huff (collectively, “Madison Local“). For the reasons stated below, we affirm in part, reverse in part, and remand.
{¶ 2} In the aftermath of a 2016 school shooting at the Madison Junior-Senior High School, Madison Local passed a resolution that allowed it to authorize several Madison Local School District employees to carry concealed firearms into the Madison Local School District‘s school safety zones.1 Madison Local claimed authority for this resolution on application of
{¶ 3} The persons authorized by Madison Local to carry concealed firearms under this resolution were deemed “approved volunteers” employed by the Madison Local School District who were licensed to carry a concealed firearm in Ohio and who had undergone 24 hours of active shooter/killer training. The authorized employees had also completed and passed a criminal background check, a drug screen, and a mental health evaluation.
No public or private educational institution * * * shall employ a person as a special police officer, security guard, or other position in which such person goes armed while on duty, who has not received a certificate of having satisfactorily completed an approved basic peace officer training program, unless the person has completed twenty years of active duty as a peace officer.
{¶ 5} The Ohio Peace Officer Training Commission (“OPOTC“) governs basic peace officer training in Ohio. The OPOTC sets rules and approves programs for certified peace officer training. Training takes place at the Ohio Peace Officer Training Academy (“OPOTA“) or an approved local police academy. Martucci v. Akron Civ. Serv. Comm., 194 Ohio App.3d 174, 2011-Ohio-1782, ¶ 2 (9th Dist.);
{¶ 6} After Madison Local passed the resolution, Gabbard moved for a permanent injunction estopping Madison Local from implementing the resolution unless the employees completed an approved basic peace officer training program in accordance with
{¶ 7} Following discovery, both Gabbard and Madison Local moved for summary judgment on Gabbard‘s request for a permanent injunction. In addition, Madison Local moved for a protective order restricting the disclosure of the mental health evaluations. After taking the matter under advisement, the trial court granted Madison Local‘s request for a protective order. The trial court also granted Madison Local‘s motion for summary judgment on the Gabbard‘s request for a permanent injunction of the resolution. Gabbard now appeals, raising two assignments of error for review.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE COURT OF COMMON PLEAS ERRED IN CONCLUDING THAT THE RESOLUTION, WHICH REQUIRES ONLY 24 HOURS OF TRAINING FOR ARMED STAFF, DOES NOT VIOLATE R.C. 109.78(D) .
{¶ 10} In the first assignment of error, Gabbard argues the trial court erred by granting summary judgment in favor of Madison Local. We sustain Gabbard‘s first assignment of error.
{¶ 11} This court reviews summary judgment decisions de novo. Ludwigsen v. Lakeside Plaza, L.L.C., 12th Dist. Madison No. CA2014-03-008, 2014-Ohio-5493, ¶ 8. Pursuant to
{¶ 12} The moving party bears the initial burden of informing the court of the basis for the motion and demonstrating the absence of a genuine issue of material fact. Robinson v. Cameron, 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, ¶ 9. Once this burden
{¶ 13} In construing a statute, the primary goal “is to ascertain and give effect to the intent of the legislature as expressed in the statute.” Stewart v. Vivian, 12th Dist. Clermont No. CA2015-05-039, 2016-Ohio-2892, ¶ 44. Legislative intent is determined from the plain language of the statute. Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, ¶ 18. “If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary.” State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545 (1996). However, when a statute is ambiguous, a court must interpret the statute to determine the General Assembly‘s intent. Sherwin-Williams Co. v. Dayton Freight Lines, Inc., 112 Ohio St.3d 52, 2006-Ohio-6498, ¶ 15. Therefore, when interpreting a statute, the threshold question is whether the statute at issue is ambiguous. Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, ¶ 8.
{¶ 14} This matter does not call upon the court to decide the wisdom of permitting concealed firearms in a school safety zone. Rather, the issue is how much training a teacher or school employee must receive before carrying a firearm into a school safety zone while on duty, a matter that the General Assembly has decided. As noted above, the General Assembly enacted
No public or private educational institution * * * shall employ a person as a special police officer, security guard, or other position in which such person goes armed while on duty, who has not received a certificate of having satisfactorily completed an approved basic peace officer training program, unless the person has completed twenty years of active duty as a peace officer.
any other person who has written authorization from the board of education or governing body of a school to convey deadly weapons or dangerous ordnance into a school safety zone or to possess a deadly weapon or dangerous ordnance in a school safety zone and who conveys or possesses the deadly weapon or dangerous ordnance in accordance with that authorization
{¶ 16} Following review, we find that
{¶ 17} The plain and unambiguous language found in
{¶ 18} Though the school board may provide written authorization so that an individual is not subject to prosecution under
{¶ 19} We are likewise unpersuaded by the designation that the persons authorized to carry concealed firearms under the resolution were “approved volunteers.” The “approved volunteer” designation does not alter the inevitable conclusion that the Madison Local employees are “armed while on duty.” The resulting application is clear. As the teachers and staff members are employed by Madison Local in a position in which they go into school “armed while on duty,” Madison Local was obligated to follow the dictates of
{¶ 20} We recognize that the parties share an urgent desire to make Madison Local as safe as possible. Madison Local presents compelling testimony detailing the horror surrounding the school shooting that gave rise to the resolution. However, the power to
Judges are men and women just like everyone else in society. We are not infallible, but we do have a job to do. But in performing our duties, we should do so fairly and impartially, setting aside our own personal opinions and feelings, and render decisions in accordance with the law as adopted by the General Assembly and not attempt to impose our own personal views of what the law should be, in order to remake and control society in our own personal concept of what society should be.
Cox v. Franklin Cty. Court of Common Pleas, 42 Ohio App.3d 171, 176 (10th Dist.1988). It is not the role of the courts “to establish legislative policies or to second-guess the General Assembly‘s policy choices. ‘The General Assembly is responsible for weighing [policy] concerns and making policy decisions.‘” Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, ¶ 35, quoting Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, ¶ 212.
{¶ 21} As a result, we find the trial court erred in granting summary judgment in favor of Madison Local. Since the resolution does not comply with the General Assembly‘s dictates in
{¶ 22} Assignment of Error No. 2:
{¶ 23} THE TRIAL COURT ERRED IN GRANTING A PROTECTIVE ORDER OVER THE REDACTED EVALUATIONS AND RELATED TESTIMONY.
{¶ 24} In the second assignment of error, Gabbard argues the trial court erred by granting Madison Local a protective order restricting the public disclosure of the mental
{¶ 25} Both Gabbard and Madison Local argue that a de novo standard of review applies. The issue raised in this assignment of error, however, is whether the trial court erred by granting Madison Local a protective order. “We review an order granting or denying a motion for a protective order for an abuse of discretion.” Schmidt v. Krikorian, 12th Dist. Clermont No. CA2011-05-035, 2012-Ohio-683, ¶ 24.
{¶ 26} The trial court determined that the Health Insurance and Portability and Accountability Act, also known as HIPAA, supported its decision to grant Madison Local‘s motion for a protective order. Specifically, as the trial court stated:
Here, provisions of [HIPAA] as codified in
CFR 45 § 65 FR 8446 , support [Madison Local‘s] position. Unlike a personal injury action or similar tort, the individuals have not granted counsel, the court, [Madison Local], or medical treatment providers permission to access and/or release health information in furtherance of a legal claim. Rather, the individuals granted permission to the providers to share limited, specific information for purposes of an employment decision. That information may not be shared without violating individual [HIPAA] rights.
{¶ 27} Gabbard and Madison Local, however, agree that HIPAA is not applicable to the case at bar. We also agree that HIPAA is not applicable in this case. But a trial court can be right for the wrong reason. Este Oils Co. v. Federated Ins. Co., 132 Ohio App.3d 194, 198 (1st Dist.1999). What is applicable, and what is in dispute, is whether the trial court erred by applying
{¶ 28} As noted above, Gabbard sought the public disclosure of certain court documents that Madison Local had provided to the trial court under seal. This included, among other documents, the mental health evaluations of the Madison Local School District employees.
{¶ 29} The Rules of Superintendence provide for public access to court records. Woyt v. Woyt, 8th Dist. Cuyahoga Nos. 107312, 107321, and 107322, 2019-Ohio-3758, ¶ 59, citing State ex rel. Vindicator Printing Co. v. Wolff, 132 Ohio St.3d 481, 2012-Ohio-3328, ¶ 23. There is a general presumption that court records are publicly accessible. State ex rel. Harris v. Pureval, 155 Ohio St.3d 343, 2018-Ohio-4718, ¶ 11 citing
A court shall restrict public access to information in a case document or, if necessary, the entire document, if it finds by clear and convincing evidence that the presumption of allowing public access is outweighed by a higher interest after considering each of the following:
(a) Whether public policy is served by restricting public access;
(b) Whether any state, federal, or common law exempts the document or information from public access;
(c) Whether factors that support restriction of public access exist, including risk of injury to persons, individual privacy rights and interests, proprietary business information, public safety, and fairness of the adjudicatory process.
{¶ 30} Despite Gabbard‘s argument, in accordance with
{¶ 31} We further agree that, although we find that the relevant resolution impermissibly violated
{¶ 32} Judgment affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
HENDRICKSON, P.J., concurs.
S. POWELL, J., concurs in part and dissents in part.
HENDRICKSON, P.J., concurring separately.
{¶ 33} I concur in the majority opinion in whole.
{¶ 34} The dissent applies the principle of ejusdem generis in an attempt to determine the legislative intent behind the phrase “or other position in which such person goes armed while on duty.” In doing so, the dissent concludes that the authorized staff carrying firearms in the school are “volunteer school employees” that do not fit into the same category as special police officers and security officers. However, these “voluntary school employees” are hired by the school and go armed while on duty.
{¶ 35} While teachers, administrative staff, or other school employees have volunteered to carry a firearm while in a school safety zone, the undeniable fact is that these individuals have been hired by Madison Local as employees. These employees have been advised by Madison Local of their ability to carry a firearm while on duty as follows:
Please note that this letter authorizes, but does not require, you to possess a firearm while on duty. You are granted this authorization as an additional safety measure to protect our students and staff from harm. You must only wield or use the weapon to protect students, staff, and other civilians from deadly harm.” (Plaintiffs’ Exhibit 10.)
(Emphasis added.) Madison Local‘s objective is, therefore, for authorized staff to possess a firearm in order to protect students and staff from harm while carrying out the duties they were hired to complete. Thus, the authorized staff, while performing their hired
{¶ 36} The legislature intended for Madison Local authorized staff to comply with the rigorous training and peace officer experience required by
{¶ 37} During oral argument before this court, counsel for Madison Local argued that the legislature could have intended for local school boards to decide the degree of training staff should have, based on local needs, in order for staff to be authorized to carry a firearm on school grounds. This argument, if adopted, would create vast discrepancies among school districts throughout the state as to the extent of training and experience necessary to provide protection to Ohio school children. When enacting laws regarding the amount of training required to become a peace officer, the legislature did not permit localities or individual police departments to determine training requirements based on their respective local needs. Rather, the legislature required standardization and uniformity throughout the state by requiring officers to complete a minimum of 728 hours of OPOTA training. The legislature then required that only those individuals who have completed this standard peace officer training or those individuals who have had 20 years of active duty peace officer experience, be employed by a school and be permitted to be armed while on duty.
{¶ 38} There is no doubt that the parties in this action care deeply about protecting Madison school children while they are on school grounds. I applaud Madison Local for trying to take immediate steps to ensure the safety of their students. However, such immediate steps must comply with the law.
S. POWELL, J., concurring in part and dissenting in part.
{¶ 39} I agree with the majority‘s resolution of Gabbard‘s second assignment of error. However, because I find no error in the trial court‘s decision granting summary judgment to Madison Local upon finding
{¶ 40} As noted by the majority, Gabbard‘s assignment of error of presents a straightforward question of statutory interpretation regarding the language found in
No public or private educational institution * * * shall employ a person as a special police officer, security guard, or other position in which such person goes armed while on duty, who has not received a certificate of having satisfactorily completed an approved basic peace officer training program, unless the person has completed twenty years of active duty as a peace officer.
{¶ 41} Gabbard argues the language found in
{¶ 42} “Our duty in construing a statute is to determine and give effect to the intent of the General Assembly as expressed in the language it enacted.” Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, ¶ 14, citing Griffith v. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, ¶ 18; Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, ¶ 20. “To discern legislative intent, we read words and phrases in context and construe them in accordance with rules of grammar and common usage.” Mahoning Edn. Assn. of Dev.
{¶ 43} I find the plain and unambiguous language found in
{¶ 44} Gabbard claims the phrase “or other position in which such person goes armed while on duty” includes any employee who is employed by a public or private education institution regardless of their assigned job responsibilities so long as that employee has been authorized to carry a firearm while on the job. This, according to Gabbard, would include teachers, administrators, and support staff. Madison Local, on the
{¶ 45} Where, as here, “specific items in a list are followed by a more general category, a familiar rule of statutory construction, ejusdem generis, says that the more general item is to be construed as of a similar character as the specific items.” Cleveland v. State, 157 Ohio St.3d 330, 2019-Ohio-3820, ¶ 56 (Dewine, J., concurring); George H. Dingledy Lumber Co. v. Erie R. Co., 102 Ohio St. 236, 245 (1921) (“where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase should be held to include only things of the same general nature as those specified“). This “principle ‘parallels common usage’ in that ‘[w]hen the initial terms all belong to an obvious and readily identifiable genus, one presumes that the speaker or writer has that category in mind for the entire passage.‘” Id., quoting Scalia & Garner, Reading Law: The Interpretation of Legal Texts 199 (2012). Therefore, in the absence of a clear legislative manifestation to the contrary, “where the statute enumerates specific subjects or things of a similar nature, kind, or class, followed by general words prefaced by ‘or other,’ the meaning of the general words ordinarily will be construed as restricted by the specific designations and as including only things of the same general nature, kind, or class as those specifically enumerated.” Sells v. Historical Center, 10th Dist. Franklin No. 82AP-508, 1982 Ohio App. LEXIS 15081, *4 (Nov. 30, 1982), citing Glidden Co. v. Glander, 151 Ohio St. 344, 350 (1949).
{¶ 46} “‘In accordance with the rule of ejusdem generis, such terms as ‘other,’ ‘other
{¶ 47} When taking the phrase “position in which such person goes armed while on duty” in isolation, Gabbard‘s reading of the statute makes some sense. Teachers, administrators, and support staff who are authorized by Madison Local to carry concealed firearms into the Madison Local School District‘s school safety zones under
{¶ 48} The two key words in
{¶ 49} Just as the majority, I reach this decision irrespective of, and without deference to, my own beliefs as to whether it is sound public policy to permit teachers, administrators, and support staff to carry concealed firearms while fulfilling their chosen profession of teaching and mentoring the students entrusted to them by their parents and guardians. However, contrary to the majority‘s decision, I believe the General Assembly, through the passage of
{¶ 50} It is not my role as a judge to second-guess the General Assembly‘s decisions as to what may or may not be sound public policy. My role is instead to interpret and apply the law as written. Adhering to my duty as a jurist, thereby interpreting and applying the law as written, I would hold that the language found in