GABBARD ET AL., APPELLEES, v. MADISON LOCAL SCHOOL DISTRICT BOARD OF EDUCATION ET AL., APPELLANTS.
Slip Opinion No. 2021-Ohio-2067
Supreme Court of Ohio
June 23, 2021
Submitted January 12, 2021
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Gabbard v. Madison Local School Dist. Bd. of Edn., Slip Opinion No. 2021-Ohio-2067.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2021-OHIO-2067
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Gabbard v. Madison Local School Dist. Bd. of Edn., Slip Opinion No. 2021-Ohio-2067.]
Local boards of education—School employees—
(No. 2020-0612—Submitted January 12, 2021—Decided June 23, 2021.)
APPEAL from the Court of Appeals for Butler County, No. CA2019-03-051, 2020-Ohio-1180.
{¶ 1} In April 2018, just over two years after a school shooting at Madison Junior/Senior High School that resulted in injuries to four students, appellant Madison Local School District Board of Education (“the board“) passed a resolution to authorize certain school-district employees to carry a deadly weapon or dangerous ordnance on school property “for the welfare and safety of [its] students.” This appeal asks us to determine whether that resolution complies with Ohio law. We conclude that it does not.
Background and relevant statutes
{¶ 2} The 2016 shooting at Madison Junior/Senior High School is part of an alarming pattern of gun violence in American schools. A recent study identified 180 school shootings that occurred in the
{¶ 4} Before turning to the specific circumstances of this case, we review those statutes. The first statute,
No public or private educational institution or superintendent of the state highway patrol 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 second statute,
[A] law enforcement officer who is authorized to carry deadly weapons or dangerous ordnance, a security officer employed by a board of education or governing body of a school during the time that the security officer is on duty pursuant to that contract of employment, or 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.
(Emphasis added.)
{¶ 6} The question presented here is whether the training or experience that
Facts and procedural background
{¶ 7} The board‘s April 2018 resolution “to allow armed staff” in a school safety zone states that, pursuant to
{¶ 8} The board subsequently adopted a “firearm authorization policy” for the purpose of implementing the April 2018 resolution. The policy states that, pursuant to
{¶ 9} Appellees, Erin Gabbard, Aimee Robson, Dallas Robson, Benjamin Tobey, and Benjamin Adams (collectively, “the parents“), are parents of students enrolled in the Madison Local School District. They filed this action in the Butler County Court of Common Pleas in September 2018. They sought a declaratory judgment that the board‘s April 2018 resolution violates
{¶ 10} The trial court entered summary judgment in favor of appellants on the parents’ claims for declaratory judgment and injunctive relief. Relying on “the context of the statute,” the trial court determined
{¶ 11} A divided panel of the Twelfth District Court of Appeals reversed the trial court‘s judgment on the parents’ claims for declaratory judgment and injunctive relief. 2020-Ohio-1180, 153 N.E.3d 471, ¶ 21, 32. The majority rejected the trial court‘s limited reading of
{¶ 12} This court accepted appellants’ discretionary appeal to address whether, under Ohio law, school teachers, administrators, and other school staff must satisfy the training-or-experience requirement in
Analysis
{¶ 13} Our paramount concern in examining a statute is the legislature‘s intent in enacting the statute. State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21. To discern that intent, we first consider the statutory language, reading all words and phrases in context and in accordance with the rules of grammar and common usage. Id. We give effect to the words the General Assembly has chosen, and we may neither add to nor delete from the statutory language. Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 19. When the statutory language is unambiguous, we apply it as written without resorting to rules of statutory interpretation or considerations of public policy. Zumwalde v. Madeira & Indian Hill Joint Fire Dist., 128 Ohio St.3d 492, 2011-Ohio-1603, 946 N.E.2d 748, ¶ 23-24, 26. In other words, our review “starts and stops” with the unambiguous statutory language. Johnson v. Montgomery, 151 Ohio St.3d 75, 2017-Ohio-7445, 86 N.E.3d 279, ¶ 15.
{¶ 14} Starting from the premise that
{¶ 15} Before turning to
The training or experience required by R.C. 109.78(D) applies to school employees who go armed while on the job
{¶ 16}
{¶ 17}
{¶ 19} Based on
{¶ 20} Contrary to appellants’ assertion, the express language of
{¶ 21} Amicus curiae Ohio Attorney General Dave Yost, urging reversal of the Twelfth District‘s judgment, makes an additional textual argument that
{¶ 22} Arguing in favor of a limited reading of
{¶ 23}
{¶ 24} The attorney general suggests that
{¶ 25} The General Assembly could have expressly limited application of
[W]here in a statute terms are first used which are confined to a particular class of objects having well-known and definite features and characteristics, and then afterwards a term having perhaps a broader signification is conjoined, such latter term is, as indicative of legislative intent, to be considered as embracing only things of a similar character as those comprehended by the preceding limited and confined terms.
State v. Aspell, 10 Ohio St.2d 1, 225 N.E.2d 226 (1967), paragraph two of the syllabus. Appellants ask this court to apply that rule and to construe the phrase “other position” in
{¶ 27} Neither appellants’ invocation of the ejusdem generis rule nor their application of the rule is persuasive. While firmly established as an interpretive rule, the ejusdem generis rule ” ‘is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty.’ ” United States v. Powell, 423 U.S. 87, 91, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975), quoting Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 80 L.Ed. 522 (1936). This court has frequently noted that we invoke rules of statutory interpretation only when the statutory language itself is subject to various interpretations. See Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000); see also Hulsmeyer at ¶ 22-23 (when statutory language is unambiguous, courts must rely on what the General Assembly has written). We may not “dig deeper than the plain meaning of an unambiguous statute ‘under the guise of * * * statutory interpretation.’ ” Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 8, quoting Morgan v. Adult Parole Auth., 68 Ohio St.3d 344, 347, 626 N.E.2d 939 (1994). Here, the parties do not identify, nor does our independent review reveal, ambiguity in
{¶ 28} Even if the ejusdem generis rule were applicable, its application does not justify the limitation that appellants ask us to place on
{¶ 29}
{¶ 30} The only “other position[s]” appellants identify that would qualify under their reading of
R.C. 2923.122(D)(1)(a) does not permit a school to circumvent the requirements of R.C. 109.78(D)
{¶ 31} We now turn to
{¶ 32} Although the clear purpose of
{¶ 33}
{¶ 34} Nothing in
{¶ 35} The same logic applies to
{¶ 36} There is no conflict between the authority of a school board implicitly recognized in
{¶ 37} When the General Assembly enacted
{¶ 39} In addition to appellants’ concern about treating school employees differently from nonemployees, the extensive briefing in this appeal from both the parties and amici curiae contains impassioned arguments regarding the propriety of arming teachers and other school staff and the training that should be required of such persons before they are permitted to go armed while on duty. Those questions, while vital in the context of the overarching policy debate, are outside this court‘s purview. It is a fundamental principle of the separation of powers that “the legislative branch [of government] is ‘the ultimate arbiter of public policy.’ ” Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 21, quoting State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Information Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21. As this court may neither establish policy nor second-guess the General Assembly‘s policy choices, Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 212, such arguments are more appropriately directed to the General Assembly.
{¶ 40} To the extent that
Conclusion
{¶ 41}
Judgment affirmed.
DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, J., dissents, with an opinion.
FISCHER, J., dissents, with an opinion.
DEWINE, J., dissents, with an opinion joined by FISCHER, J.
KENNEDY, J., dissenting.
{¶ 42} In order for the majority to reach its conclusion that the basic peace-officer-training or peace-officer-experience requirement of
{43} In this case, neither of the statutes at issue refers to the other, and the language of
Facts and Procedural History
{44} On April 24, 2018, the school board adopted a resolution pursuant to
{45} In the trial court, Gabbard argued that the school board could not authorize its employees to carry firearms on school grounds unless the employees first complied with the requirements of
{46} The trial court granted the school board‘s motion for summary judgment and
Law and Analysis
{47} We review the grant or denial of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). In order to obtain summary judgment, the movant must show that “(1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion when viewing evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party.” Id., citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994); see also
{48} This case presents a question of statutory interpretation. The heart of Gabbard‘s argument is that to give effect to
{49} De novo review applies to questions of statutory interpretation. Ceccarelli v. Levin, 127 Ohio St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8. We owe no deference to the lower court‘s decision, nor are we limited to choosing between the different interpretations of a statute presented by the parties. In re Determination of Existence of Significantly Excessive Earnings for 2017 Under the Elec. Sec. Plan of Ohio Edison Co., 162 Ohio St.3d 651, 2020-Ohio-5450, 166 N.E.3d 1191, ¶ 105 (Kennedy, J., concurring in judgment only in part and dissenting in part). “The parties may espouse arguments regarding the meaning of a statute, but in the end, it is the courts that have the authority and the duty to ‘say what the law is.‘” Id. (Kennedy, J., concurring in judgment only in part and dissenting in part), quoting Marbury v. Madison, 5 U.S. 137, 177, 2 L.Ed. 60 (1803).
{50} ” ‘The preeminent canon of statutory interpretation requires us to “presume that [the] legislature says in a statute what it means and means in a statute what it says there.” ’ ” (Brackets added in BedRoc, Ltd., L.L.C.) State ex rel. Lee v. Karnes, 103 Ohio St.3d 559, 2004-Ohio-5718, 817 N.E.2d 76, ¶ 27, quoting BedRoc Ltd., L.L.C. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004), quoting Connecticut Natl. Bank v. Germain, 503 U.S. 249, 253-254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). As we explained in Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000), “[w]hen the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need for this court to apply the rules of statutory interpretation.” Rather, “[a]n unambiguous statute is to be applied, not interpreted.” Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944), paragraph five of the syllabus.
{51} When statutes or provisions in statutes explicitly refer to each other the statutes are to be construed in pari materia. Ohio Bus Sales, Inc. v. Toledo Bd. of Edn., 82 Ohio App.3d 1, 7, 610 N.E.2d 1164 (6th Dist.1992). This court has also used the in pari materia rule of construction when some doubt or ambiguity exists in a statute. See Herman v. Klopfleisch, 72 Ohio St.3d 581, 585, 651 N.E.2d 995 (1995). “All statutes relating to the same general
{52} In this case, the in pari materia rule of construction does not apply for three reasons. First,
R.C. 109.78(D) and R.C. 2923.122(D)(1)(a) do not explicitly refer to each other
{53} The General Assembly made one reference to
Any person who is employed in this state, who is authorized to carry deadly weapons or dangerous ordnance, and who is subject to and in compliance with the requirements of section 109.801 of the Revised Code, unless the appointing authority of the person has expressly specified that the exemption provided in division (D)(1)(b) of this section does not apply.
(Emphasis added.)
{54}
[A]ny peace officer, sheriff, chief of police of an organized police department of a municipal corporation or township, chief of police of a township police district or joint police district police force, superintendent of the state high patrol, state highway patrol trooper, or chief of police of a university or college police department; any parole or probation officer who carries a firearm in the course of official duties; any corrections officer of a multicounty correctional center, or of a municipal-county or multicounty-municipal correctional center * * *; the house of representatives sergeant at arms * * *; the senate sergeant at arms * * *; any tactical medical professional; or any employee of the department of youth services who is designated * * * as being authorized to carry a firearm while on duty.
{55} The lack of any reference to
{57} Therefore, in construing
R.C. 2923.122(D)(1)(a) is plain and unambiguous
{58}
[A] law enforcement officer who is authorized to carry deadly weapons or dangerous ordnance, a security officer employed by a board of education or governing body of a school during the time that the security officer is on duty pursuant to that contract of employment, or 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.
(Emphasis added.) Id.
{59} Relying on that provision, the school board resolved to give written authorization to people designated by the district‘s superintendent to carry firearms on school grounds. Any person—whether a teacher, administrator, custodian, or simply a member of the public—who has been given that written authorization and who carries a firearm in a school safety zone in the Madison Local School District in accordance with that authorization cannot be
{60} The Twelfth District Court of Appeals, however, held that
{61} The appellate court began from the premise that
{62} The school board adopted its resolution under the authority of
{63} As set forth above,
{64} A statute is ambiguous ” ’ “if a reasonable person can find different meanings in the statute and if good arguments can be made for either of two contrary positions.” ’ ” (Emphasis added in Turner.) Turner v. Hooks, 152 Ohio St.3d 559, 2018-Ohio-556, 99 N.E.3d 354, quoting Sunset Estate Properties, L.L.C. v. Lodi, 9th Dist. Medina No. 12CA0023-M, 2013-Ohio-4973, ¶ 20, quoting 4522 Kenny Rd., L.L.C. v. Columbus Bd. of Zoning Adjustment, 152 Ohio App.3d 526, 2003-Ohio-1891, 789 N.E.2d 246, ¶ 13 (10th Dist.).
{65} But here,
{66} The majority, however, like the appellate court, begins by reading
R.C. 109.78 does not relate to the same general subject matter as R.C. 2923.122(D)(1)(a)
{67} While it is true that both
{68} Moreover,
{69}
{70}
No public or private educational institution or superintendent of the state highway patrol 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.
(Emphasis added.)
{71} The phrase “in which such person goes armed while on duty” modifies and qualifies the word “position.” See Carter v. Youngstown Div. of Water, 146 Ohio St. 203, 209, 65 N.E.2d 63 (1946) (in construing a statute, “referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent“). The word “position” is defined as “the group of tasks and responsibilities making up the duties of an employee.” Webster‘s Third New International Dictionary 1769 (2002). Or put another way, one‘s position is defined by its job responsibilities and duties, and there is a distinction between the position itself and the employee who fills it. Pursuant to
{72} Part of the General Assembly‘s stated purpose in enacting
{73} This is confirmed by the structure of the statute.
{74} Statutes like
procure and pay for security services from a county sheriff or a township or municipal police force or from a person certified through the Ohio peace officer training commission, in accordance with section 109.78 of the Revised Code, as a special police, security guard, or as a privately employed person serving in a police capacity for nonpublic schools in the district described in division (E)(1) of section 3317.024 of the Revised Code.
(Emphasis added.) This statute demonstrates that
{75} Moreover, if persons authorized to possess a deadly weapon or dangerous ordnance in a school safety zone were required to comply with the firearm-training requirements of
{76} Reading the statutory scheme as a whole confirms that when the General Assembly required a person who is employed in a “position in which [the employee] goes armed while on duty” to have “a certificate of having satisfactorily completed an approved basic peace officer training program,” it did so because it contemplated the position to involve the employee acting in a police capacity, and if an employee is employed as a de facto police
{77} That returns us to
{78} Had the General Assembly intended to condition the authority to carry a firearm in a school safety zone on having the basic police training required of peace officers, it could have written the statute that way. It did not, and “a court may not rewrite the plain and unambiguous language of a statute under the guise of statutory interpretation,” Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 20.
{79} For these reasons, it is manifest that
FISCHER, J., dissenting.
{80} We all want the best for our children—for them to be able to learn and grow in a safe environment. And there are differing opinions on how to achieve that goal. But it is the responsibility of the General Assembly, not this court, to weigh policy concerns and make legislative choices for the benefit of all Ohioans. Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 212. This court‘s job is merely to interpret the laws enacted by the General Assembly. Id. We are not to invade the role of the legislature to write laws and make policy determinations. See Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 8.
{81} After reviewing the statutes at issue here, all roads lead a single conclusion: appellant Madison Local School District Board of Education may provide written authorization for its nonsecurity employees to carry weapons while on school property without requiring those employees to complete basic peace-officer training. In other words,
{82} I agree with the statutory analyses set forth in the third dissenting opinion and I join that opinion in full. Additionally, I must point out that while I believe that the plain language of
{83} The canon of expressio unius est exclusio alterius means that the expression of one or more items of a class implies that those not identified are to be excluded from the class. State v. Droste, 83 Ohio St.3d 36, 39, 697 N.E.2d 620 (1998). The canon does not apply to every statutory listing or grouping. Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 35. “[I]t has force only when the items expressed are members of an ‘associated group or series,’ justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence.” Id., quoting Barnhart v. Peabody Coal Co., 537 U.S. 149, 168, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003), citing United States v. Vonn, 535 U.S. 55, 65, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). The canon depends on identifying a series of two or more terms that should be understood to go hand-in-hand, and the failure to include a term that has been left out indicates the legislature‘s intent to exclude it. Summerville at ¶ 36.
{84}
{85} The bottom line is that the plain language of
{86} Therefore, I respectfully dissent.
DEWINE, J., dissenting.
{87} In 2016, a student in Middletown, Ohio, opened fire in his school‘s cafeteria, wounding four other students. The Madison Local School District Board of Education responded by adopting a series of measures designed to prevent another shooting and to better protect its students should an active-shooter situation again occur. At issue here is one of those measures. The board authorized a limited number of teachers and staff members who possessed concealed-handgun permits to carry firearms on school property. These teachers were required to complete 24 hours of active-shooter training, hold a handgun-qualification certificate, receive training on mental preparation to respond to active killers, and undergo a mental-health exam, a criminal-background check, and drug screening.
{88} An Ohio statute says that a school board may by written authorization allow an individual to carry a deadly weapon in a school safety zone and provides that one who acts pursuant to such authorization
{89} To reach its conclusion, the majority finds it necessary to forsake a plain reading of the peace-officer-training statute. Instead, it adopts a strained reading of the statute that is at odds with the way ordinary speakers of the English language read texts. As I will explain, properly understood, the peace-officer-training provision applies only to persons employed in a security-related position and does not bar Madison Local from adopting the policy at issue. I therefore dissent.
I. Reading the peace-officer-training provision
A. The text of the provision
{90} The peace-officer-training provision states:
No public or private educational institution or superintendent of the state highway patrol 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.
{91} The statute makes two of the positions explicit: “special police officer” and “security guard.” Id. Then it lists a third, broader category: “other
position in which such person goes armed while on duty.” Id. The dispute in this case is whether teachers are included in this third category.
{92} And that question seems to answer itself. Is the position of teacher a “position in which such person goes armed while on duty?” No, going armed on duty is not part of the “position” of being a teacher. True, the board has authorized a small number of teachers who hold valid concealed-handgun permits to carry their firearms at school. But carrying firearms is not part of their job description—it is not part of the position of being a teacher. Indeed, under the policy, most people holding the position of teacher at Madison Local schools would not carry firearms.
{94} The majority gets there by interpreting each word in the phrase in isolation. It recites dictionary definitions of the words “position,” “other,” and “while.” Then, once it has told us a dictionary meaning of each word, it strings those individual definitions together and comes up with what it says is the meaning of the whole sentence.
{95} But that is not how anyone reads or understands language. Instead, words are grouped together to form clauses and sentences and paragraphs that, as a whole, convey information to the reader. This is why we have said that “[e]valuating the context in which a word is written is essential to a fair reading of the text.” Great Lakes Bar Control, Inc. v. Testa, 156 Ohio St.3d 199, 2018-Ohio-5207, 124 N.E.3d 803, ¶ 9. Our goal in reading a text should be “to discern literal meaning in context” and avoid a hyperliteral, ” ‘viperine’ construction that kills the text.” Scalia & Garner, Reading Law: The Interpretation of Legal Texts 40 (2012). The majority‘s reading tends toward the latter. By zeroing in on each word in isolation, it loses its grasp on the meaning of the provision as a whole. See New York Trust Co. v. Commr. of Internal Revenue, 68 F.2d 19, 20 (2d Cir.1933) (“a sterile literalism * * * loses sight of the forest for the trees“).
{96} The majority‘s analysis goes like this: (1) a “position” is a job, (2) “other position” means any employment other than as a special police officer or security guard, and (3) “while” means during—so what the provision really means is that no person who has a job at a school may carry a weapon during the time that he is on duty unless he has met the requirements of the peace-officer-training provision.
{97} But, of course, if the legislature meant to say that, why wouldn‘t it have said that? If we go back to the statute, we can easily see the problems with the majority‘s analysis. So here it is again: “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 satisfied the training requirements.
{98} To start, the statute is directed at whom a school may employ: it forbids a school from employing a person in a position in which the person goes armed while on duty. The provision does not refer to a person who holds a “position” and just happens to “go armed” while working in that position. It applies to a person who is employed in a position in which the person goes armed while on duty. The provision‘s focus is on the position in which the person is employed—that is, whether it is a position in which the person goes armed.
{99} The majority‘s reading would also render much of the peace-officer-training statute redundant. The provision is already limited in its scope to employees: as explained above, it prohibits a school from employing a person in a specified position unless that person has undergone the appropriate training. The phrase “other position” must mean something other than the fact that the person holds a job at the
{100} This becomes even more clear when we look at the listed positions—“special police officer, security guard, or other position in which such person goes armed while on duty“—together.
{101} Reading the phrase “other position in which such person goes armed while on duty” as being of the same ilk as a special police officer and security guard is also the most natural reading, because to read the phrase more broadly would make it unnecessary to list special police officers and security guards at all. In other words, if the phrase “other position” truly includes any position at the school, the third item on the list would swallow up the first two and there would have been no reason for the General Assembly to have enumerated them. Thus, the majority‘s conclusion that the “other position” clause applies to any position at the school renders the statute‘s references to the specific positions meaningless.
B. The principle of ejusdem generis
{102} Though the interpretative process I have described is one that we all use every day without thinking much about, it is also a canon of statutory interpretation that goes by the name “ejusdem generis.” This principle tells us that ” ‘[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those
objects enumerated by the preceding specific words.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-115, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001), quoting 2A N. Singer, Sutherland Statutes and Statutory Construction, Section 47.17 (1991). The ejusdem generis rule “parallels common usage.” Scalia & Garner, Reading Law at 199. It reflects the natural reading of the text, because construing the general clause too broadly would render the specifically enumerated categories superfluous. See Sutherland Statutes and Statutory Construction at Section 47.17, quoting Rex v. Wallis, 5 TR 375, 101 Eng.Rep. 210 (1793) (“had a legislature intended the general words to be used in their unrestricted sense, it would have made no mention of the particular words, but would have used ‘only one compendious’ expression“). Thus, “[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.” Reading Law at 199.{103} The rationale underpinning the canon of ejusdem generis implicates another principle commonly employed to understand the plain meaning of a statute: the “surplusage canon.” Id. at 174. This mode of interpretation provides that when possible, a statute should be construed so as to give effect to every word used, and “[n]one should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” Id. Courts generally presume a legislature not to have put redundant words or phrases into a statute. See Kungys v. United States, 485 U.S. 759, 778-779, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988) (plurality opinion); Buddenberg v. Weisdack, 161 Ohio St.3d 160, 2020-Ohio-3832, 161 N.E.3d 603, ¶ 10.
{¶ 104} The majority claims that the principle of ejusdem generis supports its view of the peace-officer-training provision. In doing so, it misunderstands and misapplies the rule. First, the majority fails to identify the true thread linking the positions of “special police officer” and “security guard” with those “other position[s] in which [the employee] goes armed while on duty,”
{¶ 105} The majority contends that construing the general “other positions” clause to include other armed, security-related positions renders that clause meaningless. Not so. The clause serves as a catch-all so that the legislature need not enumerate every conceivable security-related job, and the catch-all accounts for other security-related positions that might not technically be considered a “special police officer” or a “security guard.” See N. Singer, Sutherland Statutes and Statutory Construction at Section 47.17 (“Ejusdem generis is a common drafting technique designed to save a legislature from spelling out in advance every contingency in which a statute could apply“).
{¶ 106} It is true that “when the specifics exhaust the class and there is nothing left besides what has been enumerated, the follow-on general term must be read literally.” Scalia & Garner, Reading Law at 209. But the mere fact that the majority can‘t seem to think of any security-related positions beyond those of special police officer or security guard does not mean that such positions don‘t exist or won‘t exist in the future. Indeed, the majority discusses one conceivable security-related position at length—that of the school resource officer. It rejects the argument that the “other position” clause might cover school resource officers on the basis that not every school resource officer carries a gun while on duty. But many school resource officers are armed as part of their position. See National Association of School Resource Officers, Frequently Asked Questions, available at https://www.nasro.org/faq/ (accessed Apr. 13, 2021) [https://perma.cc/HSY4-CHBJ] (“Are school resource officers usually armed? Yes“). Surely those officers would fall into the category of people employed in a security-related position in which they go armed while on duty.
{¶ 107} Moreover, the majority considers the possibility of security-related positions only in the context of schools. In doing so, it forgets that the training provision also prohibits the “superintendent of the state highway patrol” from “employ[ing] a person as a special police officer, security guard, or other position in which such person goes armed while on duty,” if that person has not completed the requisite training.
{¶ 108} Thus, there is no reason to think that the two enumerated positions of special police officer and security guard “exhaust
{¶ 109} In short, the “other position” clause is vague, perhaps intentionally so. The legislature often employs general terms “to cover a multitude of situations“—or in this case, positions—“that cannot practicably be spelled out in detail or even foreseen.” Scalia & Garner, Reading Law at 32-33. But vagueness, which is distinct from ambiguity, “can often be clarified by context.” Id. at 33. Ejusdem generis is simply a tool for discerning the meaning of vague words in context. See id.
C. Reviewing the context of the statute as a whole
{¶ 110} As illustrated above, the plain text of the peace-officer-training provision demonstrates that its training requirements apply only to those people holding security-related positions at schools. Should there be any lingering doubt, however, the scope and context of the statute as a whole provide further support for that reading. As the United States Supreme Court has explained:
Whether a statutory term is unambiguous * * * does not turn solely on dictionary definitions of its component words. Rather, the plainness or ambiguity of statutory language is determined not only by reference to the language itself, but as well by the specific context in which that language is used, and the broader context of the statute as a whole.
Yates v. United States, 574 U.S. 528, 537, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015) (cleaned up).
{¶ 111}
{¶ 112}
{¶ 113} Thus, the training provision of
{¶ 115} Here, the majority is relying on the canon of statutory interpretation known as the “presumption of consistent usage,” Scalia & Garner, Reading Law at 170. That principle provides that ”material variation in terms suggests a variation in meaning.” (Emphasis added.) Id. “[M]ore than most other canons, this one assumes a perfection of drafting that, as an empirical matter, is not often achieved.” Id. Practically applied, this canon can in some cases be instructive. But because it is so often disregarded by the legislature, it is “particularly defeasible by context.” Id. at 171.
{¶ 116} I do not suggest that we should simply ignore variations in the statutory language. But courts should not do what the majority does, which is dismiss overwhelming textual evidence supporting one interpretation simply because that interpretation does not fit neatly within one linguistic canon. Rather, courts must assess the “clarity and weight” of arguably conflicting “clues” about the meaning of a statute and determine where the balance lies. Id. at 59. It may well be that the legislature viewed the security-related positions in the highway-patrol and school contexts to encompass positions other than those in which a person is employed in a “police” capacity; or, it may be that the legislature was simply inconsistent. Regardless, the use of different language in the training provision does not manifest a plain legislative meaning sufficient to overcome the clear import of the text of the training provision and the context of the statute as a whole.
{¶ 117} In short, both the language of the training provision and the context in which that provision is found overwhelmingly point to one conclusion—that the provision applies only to people employed by a school in a security-related position. It does not apply to teachers.
III. The majority‘s flawed approach to the interpretation of legal texts
{¶ 118} One other aspect of the majority‘s opinion warrants further comment. The majority perpetuates a misguided belief that we may not refer to canons of statutory interpretation unless a statute is ambiguous. But this rather cramped view of statutory interpretation misunderstands the relationship between canons of statutory construction and discernment of the plain meaning of a given text.
{¶ 119} Under the plain-meaning rule, “if the text of a statute is unambiguous, it should be applied by its terms without recourse to policy arguments, legislative history, or any other matter extraneous to the text.” Scalia & Garner, Reading Law at 436. In other words, when the statutory language is unambiguous, courts should not rely on extrinsic information to discern the meaning of the statute, but should instead conduct a “careful examination of the ordinary meaning and structure of the law itself.” Food Marketing Inst. v. Argus Leader Media, ___ U.S. ___, 139 S.Ct. 2356, 2364, 204 L.Ed.2d 742 (2019).
{¶ 120} This does not mean that a court is forbidden from using intrinsic linguistic tools to understand a statute‘s plain meaning. Courts use linguistic aids to understand the plain meaning of text all the
{¶ 121} This court also frequently employs fundamental canons of interpretation to understand and explain the plain meaning of a text. For example, we regularly cite the canon that the terms of a statute should be read in the context of the statute as a whole. See, e.g., Vossman v. AirNet Sys., Inc., 159 Ohio St.3d 529, 2020-Ohio-872, 152 N.E.3d 232, ¶ 14, citing
{¶ 122} Indeed, the majority employs many such canons in explaining what it believes is the clear and unambiguous meaning of the statute. It relies on canons stating that words should be given their ordinary meanings in accordance with the rules of grammar and common usage, that the text should be read as a whole, that the legislature is presumed to have meant something different when it uses differing terms, and that the court should avoid interpretations that fail to give meaning to every part of the text. That it does so is natural. This is because any time we read language, we necessarily interpret it. See Scalia & Garner, Reading Law at 53, quoting Fish, Is There a Text in This Class? (1980) (” ‘if you seem to meet an utterance which doesn‘t have to be interpreted, that is because you have interpreted it already’ “).
{¶ 123} Many of the recognized canons of interpretation are merely descriptions of how we naturally interpret language to begin with. They are simply lawyers’ ways of explaining how we intuitively read and understand text. The canon of ejusdem generis falls easily into this category and is no less relevant than any of the canons used by the majority. It is “one of the factors to be considered, along with context and textually apparent purpose, in determining the scope” of the general clause. Reading Law at 213.
{¶ 124} It is simply not the case that we must first declare a text ambiguous in order to rely on established canons of interpretation. The United States Supreme Court illustrated this point just this term. In Facebook, Inc. v. Duguid, ___ U.S. ___, 141 S.Ct. 1163, 209 L.Ed.2d 272 (2021), the court addressed the meaning of a provision of the Telephone Consumer Protection Act,
III. Conclusion
{¶ 125} By a plain reading,
FISCHER, J., concurs in the foregoing opinion.
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Bloomekatz Law and Rachel S. Bloomekatz; and Everytown Law, Alla Lefkowitz, and James Miller, for appellees.
Frost Brown Todd, L.L.C., Matthew C. Blickensderfer, Brodi J. Conover, and W. Joseph Scholler, for appellants.
Bolek Besser Glesius, L.L.C., and Matthew D. Besser; and Gwen E. Callender, urging affirmance for amicus curiae Fraternal Order of Police of Ohio, Inc.
Brian Eastman and Matthew Cooper-Whitman, urging affirmance for amicus curiae Ohio Education Association.
Muskovitz & Lemmerbrock, L.L.C., Susan Muskovitz, and Brooks W. Boron, urging affirmance for amicus curiae Ohio Federation of Teachers.
Vorys, Sater, Seymour & Pease, L.L.P., and Daniel E. Shuey, urging affirmance for amicus curiae Professor Peter M. Shane.
Cooper & Elliott, L.L.C., C. Benjamin Cooper, and Sean R. Alto, urging affirmance for amici curiae Experts in School Safety and Firearms Training.
Warren Terzian, L.L.P., and Thomas D. Warren, urging affirmance for amici curiae Teacher Educators and Educational Researchers. Law Offices of John C. Camillus, L.L.C., and John C. Camillus, urging affirmance for amici curiae Ohio K-12 Teachers and Staff.
Zach Klein, Columbus City Attorney, Richard N. Coglianese, City Solicitor General, and Adam S. Friedman, Deputy Solicitor General, urging affirmance for amicus curiae city of Columbus.
Andrew W. Garth, City Solicitor, urging affirmance for amicus curiae city of Cincinnati.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, Michael J. Hendershot, Chief Deputy Solicitor General, and Kyser S. Blakely, Deputy Solicitor General, urging reversal for amicus curiae Attorney General Dave Yost.
Lyons & Lyons Co., L.P.A., and Jonathan N. Fox, urging reversal for amici curiae Claymont City Schools, East Guernsey Local Schools, Edgerton Local Schools, Hardin Community School, Hardin-Houston Local Schools, Jackson Center Local Schools, Mad River Local Schools, Manchester Local Schools, Morgan Local Schools, New Lebanon Local Schools, Noble Local Schools, River View Local Schools, Rolling Hills Local School District, Russia Local Schools, Sidney City Schools, Streetsboro City Schools, and Upper Scioto Valley School District.