Lead Opinion
{¶ 1} In this аppeal, we reconcile R.C. 2744.02(C) with R.C. 2744.09(E) and determine whether the denial of a motion for summary judgment in which a political subdivision or its employee sought federal qualified immunity from claims brought under Section 1983, Title 42, U.S.Code is a final, appealable order.
{¶ 2} R.C. Chapter 2744 governs political-subdivision immunity. Pursuant to R.C. 2744.02(C), orders denying employees of a political subdivision immunity from liability under any provision of law are final, appealable orders. R.C. 2744.01(D) defines the term “law” to include federal laws.
{¶ 3} R.C. 2744.09 sets forth exceptions to the applicability of R.C. Chapter 2744. Pursuant to R.C. 2744.09(E), the chapter doеs not apply to civil claims based upon alleged violations of the federal constitution or statutes.
{¶ 4} R.C. 2744.02(C) and 2744.09(E) conflict inasmuch as the former specifically applies to immunity allowed under any provision of law, including federal law, while the latter precludes application of the chapter to civil actions premised on alleged violations of federal law. As the more recent and more specific statute, R.C. 2744.02(C) prevails over R.C. 2744.09(E). Accordingly, we hold that an order denying a motion for summary judgment in which an employee of a
Relevant Background
{¶ 5} Appellants Adam Pape and Corey Hall are police officers for appellant city of Forest Park, Ohio. On September 15, 2005, Officers Pape and Hall responded to a 9-1-1 telephone call from appellee, Leola Summerville, who reported that her husband, Roosevelt Summerville, may have committed suicide. Officer Pape saw Mr. Summerville stab himself in the chest multiple times with what looked like a knife. He ordered Mr. Summerville to stoр stabbing himself, and when Mr. Summerville refused to comply with the order, Officer Pape deployed his taser. The taser did not subdue Mr. Summerville, who lunged at Officer Pape with the knife. Officers Pape and Hall simultaneously shot Mr. Summerville. He died as a result of the gunshot wounds.
{¶ 6} On September 6, 2007, Mrs. Summerville, individually and in her capacity as administrator of her husband’s estate, filed a complaint against Forest Park, Police Chief Kenneth Hughes, and Officers Pape and Hall, asserting causes of action for (1) excessive use of force under Section 1983, (2) deliberate indifference in failing to provide adequаte medical care under Section 1983, (3) deliberate indifference in failing to adequately train under Section 1983, (4) wrongful death under R.C. 2125.01, (5) negligent infliction of emotional distress, and (6) loss of consortium.
{¶ 7} Appellants and Police Chief Hughes moved for summary judgment on all claims. They argued that they were entitled to immunity on the state-law claims pursuant to R.C. Chapter 2744. Hughes, Pape, and Hall also claimed that they were entitled to federal qualified immunity
{¶ 8} The trial court granted summary judgment in favor of appellants on the state-law claims and the Section 1983 claim for deliberate indifference in failing to provide adequate medical care. The court also granted summary judgment in favor of Police Chief Hughes on all claims. The trial court denied summary judgment to Officers Pape and Hall with respect to Summerville’s Section 1983 claim for excessive force and to the city on the Section 1983 claim for deliberate indifference in failing to adequately train.
{¶ 9} Appellants appealed the trial court’s denial of summary judgment on the Section 1983 claims to the First District Court of Appeals. The notice of appeal was filed pursuant to the authority of R.C. 2744.02(C), because the appeal related to the denial of qualified immunity to Officers Pape and Hall. The city requested that the court of appeals exercise pendent appellate jurisdiction over its claimed errors because “the issues involving the City of Forest Park’s appeal [were] inextricably intertwined with the issues relating to the appeal of defendants, Adam Pape and Corey Hall.”
{¶ 10} Summerville moved to dismiss the appeal. She argued that R.C. Chapter 2744 did not apply to claims brought pursuant to Section 1983, and therefore, the trial court’s denial of summary judgment was not a final, appeal-able order. The court of appeals granted Summerville’s motion and dismissed the appeal without issuing an opinion. We accepted discretionary review of appellants’ sole proposition of law, which states: “A trial court’s decision overruling a Motion for Summary Judgment in which a political subdivision or its employee sought immunity from claims brought pursuant to 42 U.S.C. § 1983 is an order denying ‘the benefit of an alleged immunity’ and is, therefore, a final appealable order under R.C. 2744.02(C).”
Analysis
{¶ 11} “ ‘It is well-established that an order must be final before it can be reviewed by an appellate court. If an order is not final, then an appellate court has no jurisdiction.’ ” Hubbell v. Xenia,
{¶ 12} Under R.C. 2744.02(C), “[a]n order that denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order.”
{¶ 13} In Hubbell,
{¶ 14} We expanded upon Hubbell in Sullivan v. Anderson Twp.,
{¶ 15} Although Hubbell and Sullivan involved state-law immunity, R.C. 2744.02(C) expressly appliеs to the denial of the benefit of an alleged immunity as provided in any provision of law. R.C. 2744.01(D) defines the term “law” for purposes of R.C. Chapter 2744 and provides that “law” means “any provision of the constitution, statutes, or rules of the United States or of this state.” Accordingly, the express terms of R.C. 2744.01(D) and 2744.02(C) render the denial of immunity afforded under state or federal law a final, appealable order.
{¶ 16} However, pursuant to R.C. 2744.09(E), R.C. Chapter 2744 does not apply to “[cjivil claims based upon alleged violations of the constitution or statutes of the United States, except that the рrovisions of section 2744.07 of the Revised Code shall apply to such claims or related civil actions.” This case involves a civil action, and the allegations in question are based upon federal law-Section 1983. And Officers Pape and Hall claim federal qualified immunity. Appellee argues that because R.C. 2744.09(E) renders R.C. Chapter 2744 inapplicable to civil actions based on alleged violations of federal laws, R.C. 2744.02(C)
{¶ 17} We must construe the statutes to determine whether R.C. 2744.09(E) renders R.C. 2744.02(C) inapplicable to this case. We hold that it does not.
Statutory Interpretation
{¶ 18} “We must first look to the plain language of the statute itself to determine the legislative intent.” Hubbell,
{¶ 19} “However, where a statute is found to be subject to various interpretations, a court called upon to interpret its provisions may invoke rules of statutory construction in order to arrive at legislative intent.” Cline v. Ohio Bur. of Motor Vehicles (1991),
R.C. 2711.02(C) and R.C. 2711.09(E) Conflict
{¶ 20} The parties argue that the statutory provisions in this case are clear and unambiguous. However, each side sets forth a conflicting interpretation of the statutes.
{¶ 21} Appellants argue that R.C. 2744.02(C) clearly allows an immediate appeal from the denial of immunity pursuant to any provision of the law, including federal laws. They argue that if the General Assembly had intended that R.C. 2744.02(C) apply only to the denial of immunity pursuant to R.C. Chapter 2744, it would not have added the language “or any other provision of the law” to that section.
{¶ 22} Conversely, appellee argues that R.C. 2744.09(E) plainly forbids the application of R.C. Chapter 2744, including R.C. 2744.09(C), to civil claims brought pursuant to federal law and, therefore, the denial of federal qualified immunity is not a final, appealable order. Appellee contends that the clarity of the statutory scheme is evidenced by the fact that appellate courts across Ohio have uniformly refused to apply R.C. Chapter 2744 to federal causes of action under Section 1983. W.P. v. Dayton, Montgomery App. No. 22549,
{¶ 23} Moreover, contrary to appellee’s argument, Ohio courts of appeals have applied R.C. 2744.02(C) as authority to review denials of immunity in relation to claims brought under Section 1983. See Hunt v. Morrow Cty., Morrow App. No. 08 CA 13,
{¶24} “It is a well-settled rule of statutory interpretation that statutory provisions be construed together and the Revised Code be read as an interrelated body of law.” State v. Moaning (1996),
The More Recent and Specific Statute Prevails
{¶ 25} Appellants argue that as the more recent and more specific statute, R.C. 2744.02(C) prevails over R.C. 2744.09(E). We agree.
{¶ 27} Pursuant to R.C. 1.51, “[i]f a genеral provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.” R.C. 1.52(A) provides: “If statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of еnactment prevails.”
{¶28} We have already determined that a conflict exists between R.C. 2744.02(C) and 2744.09(E). R.C. 1.51 requires that initially, we attempt to reconcile the statutes, if possible, to give effect to both. In re Petition to Annex 320 Acres to S. Lebanon (1992),
{¶ 29} Appellants attempt to reconcile the statutes by arguing that R.C. 2477.09(E) means only that the immunities set forth in R.C. Chapter 2744 do not apply to federal claims and that the section does not apply to procedural dictates set forth in the chapter, including the final-and-appealable-order provision contained in R.C. 2744.02(C). Appellants’ argument ignores the clear statutory language in R.C. 2477.09(E) that states that the entire chapter (with the exception of R.C. 2744.07
{¶ 30} Appellee attempts to harmonize the provisions by explaining that although R.C. 2744.02(C) will generally render orders denying alleged immunity to political subdivisions and their employees immediately appealable, the provision does not apply to the class of cases that the General Assembly excluded from the dictates of R.C. Chapter 2744 by virtue of the language in R.C. 2744.09. Appellee contends that suсh an interpretation would not render meaningless the “any other provision of the law” language in R.C. 2744.02(C), because “federal claims are far from the only potential source of immunity from liability for political subdivisions.” By way of example, appellee cites R.C. 2305.34 (providing immunity from certain tort liability for water-supply operators) and R.C. 2305.39 (providing immunity from liability for damages by persons responding to oil discharges). Appellee’s attempt to reconcile the statutes fails. Appellee’s inter
{¶ 31} By virtue of the definition set forth in R.C. 2744.01(D), R.C. 2744.02(C) expressly applies to the denial of immunity under federal law. At the same time, R.C. 2744.09(E) forbids the application of the chapter (including R.C. 2744.02(C) and 2744.01(D)) to civil actions based on federal law. These statutes cannot be reconciled and applied so as to give effect to both. Accordingly, we must continue with the analysis under R.C. 1.51 and 1.52.
{¶ 32} Applying the rules of statutоry construction set forth in R.C. 1.51 and 1.52, we note that a specific statute will prevail unless the general statute can be shown to be the later adoption of the two and the manifest intent of the General Assembly was to have the general provision control. In re Petition to Annex,
{¶ 33} R.C. 2744.02(C) is both the more recent and the more specific statutory provision. R.C. 2744.02(C) was enacted in 2003.
The Maxim Expressio Unius Est Exclusio Alterius Does Not Apрly
{¶ 34} Appellee argues that under the maxim expressio unius est exclusio alterius, a statute that specifies one exception to a general rule is assumed to exclude all other exceptions. See Thomas v. Freeman (1997),
{¶ 35} “[T]he canon expressio unius est exclusio alterius does not apply to every statutory listing or grouping; it 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.” Barnhart v. Peabody Coal Co. (2003),
{¶ 36} “Just as statutory language suggesting exclusiveness is missing, so is that essential extrastatutory ingredient of an expression-exclusion demonstration, the series of terms from which an omission bespeaks a negative implication. The canon depends on identifying а series of two or more terms or things that should be understood to go hand in hand, which is abridged in circumstances supporting a sensible inference that the term left out must have been meant to be excluded.”
{¶ 37} We are not persuaded by appellee’s argument that by including one exception to the broad language in R.C. 2744.09(E), the legislature intended to preclude all other exceptions. R.C. 2744.09(E) does not contain a series of exceptions that illustrates the General Assembly’s intent that terms left out must have been intentionally excluded. Further, R.C. 2744.02(C) was enacted almost two decаdes after R.C. 2744.09(E). The legislature did not specifically exclude R.C. 2744.02(C) from the prohibition of R.C. 2744.09(E), because the provision did not yet exist.
Legislative Policy Considerations
{¶ 38} Our holding is consistent with legislative policy considerations. The General Assembly enacted R.C. Chapter 2744, stating that “the protections afforded to political subdivisions and employees of political subdivisions by this act are urgently needed in order to ensure the continued orderly operation of local governments and the continued ability of local governments to provide public peace, health, and safety services to thеir residents.” Am.Sub.H.B. No. 176, Section 8, 141 Ohio Laws, Part 1,1733. We noted in Hubbell,
{¶ 40} These policy considerations apply equally whether the immunity in question is based on R.C. Chapter 2744 or another provision of the law, including federal qualified immunity. Indeed, federal courts have applied a similar rationale in holding that orders denying a public official the benefit of qualified immunity are final and appealable. See, e.g., Mitchell v. Forsyth (1985),
Conclusion
{¶ 41} Pursuant to R.C. 2744.02(C), an order that denies an employee of a political subdivision immunity from liability under any provision of law is a final order. Although this section conflicts with R.C. 2744.09(E), R.C. 2744.02(C) prevails as the more recent and specific statute. Accordingly, an order denying a motion for summary judgment in which a political subdivision or its employee
{¶ 42} The court of appeals erred in dismissing the officers’ appeal. Accordingly, we reinstate the appeal and remand the cause to the court of appeals for further proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
Notes
. {¶ a} Section 1983, Title 42, U.S.Code provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” To establish a claim under this section, a plaintiff must show that (1) the conduct in question was committed by a person acting under color of state law and (2) the conduct deprived the plaintiff of rights, privileges, or immunities secured by the United States Constitution or other federal law. 1946 St. Clair Corp. v. Cleveland (1990),
{¶ b} Public officials, including police officers, who perform discretionary functions generally are shielded from liability for civil damages in a Section 1983 action by federal qualified immunity if their conduct does not violate “clearly established statutory or constitutional rights of which a reasоnable person would have known.” See Harlow v. Fitzgerald (1982),
. In addition to the proposition of law that this court accepted for review, appellants now ask us to adopt the pendent-appellate-jurisdiction doctrine to allow immediate appeals of claims against municipal defendants when they are closely intertwined with the claims of qualified immunity. Having dismissed the appeal in its entirety, the court of appeals did not reach the merits of appellants’ pendent-jurisdiction argument. Furthermore, appellants did not raise this issue as a proposition of law in their memorandum in support of jurisdiction. We decline appellants’ invitation to consider application of the doctrine in this appeal.
. R.C. 2744.07 relates to the duty of political subdivisions to defend and indemnify employees and is not at issue in the present appeal.
. The legislature attempted to amend R.C. 2744.02(C) to include the relevant language in 1997. Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 3867. See Stevens v. Ackman (2001),
Dissenting Opinion
dissenting.
{¶ 43} Today the majority holds that the denial of qualified immunity in a Section 1983, Title 28, U.S.Code action in state court that disposes of less than all claims against all parties is immediately appealable. Because the statute governing the appealability of an order denying a political subdivision or its employee the benefit of immunity from liability does not apply to civil claims based upon alleged violations of federal statutes, I respectfully dissent.
{¶ 44} R.C. 2744.02(C) provides:
{¶ 45} “An order that denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order.”
{¶ 46} Appellants claim that the phrase, “or any other provision of the law,” means that the statute applies to actions brought under federal law, including Section 1983 actions in Ohio courts. Appellants bolster their argument with the definition of “laws” in R.C. 2744.01(D), which provides:
{¶ 47} “ ‘Law5 means any provision of the constitution, statutes, or rules of the United States or of this state * *
{¶ 48} Thus, according to appellants, the рhrase “or any other provision of the law” in R.C. 2744.02(C) expressly includes federal laws, such as Section 1983, by operation of the definition of “law” in R.C. 2744.01(D).
{¶ 49} However, R.C. 2744.09(E) prohibits application of any statute in R.C. Chapter 2744, including R.C. 2744.02(C), to a cause of action under federal law, such as the federal statutory causes of action at issue here. R.C. 2744.09(E) provides:
{¶ 50} “This chapter does not apply to, and shall not be construed to apply to, the following:
{¶ 51} “ ***
*232 {¶ 52} “(E) Civil claims based upon alleged violations of the constitution or statutes of the United States, except that the provisions of sеction 2744.07 of the Revised Code shall apply to such claims or related civil actions.”
{¶ 53} Thus, under the express terms of R.C. 2744.09, the chapter does not apply to claims brought under federal law.
{¶ 54} I recognize that there is a tension between these two statutes, but unlike the majority, I do not find these two statutes irreconcilable. A reasonable construction of these two statutes would be a harmonizing construction, under which an order denying immunity may be appealed immediately under R.C. Chapter 2744 or any other provision of law, except those provisions expressly exеmpted from the chapter by R.C. 2744.09(E). Accordingly, R.C. Chapter 2744 and its procedural dictates do not apply to civil claims based upon alleged violations of federal constitutional or statutory law. This reading is reasonable, harmonizes both statutes, and avoids the majority’s resort to a rule of statutory construction that renders the language of R.C. 2744.09(E) meaningless.
{¶ 55} Accordingly, we should apply the ordinary rules regarding final, appeal-able orders to this case. For an order to be appealable, it must satisfy both R.C. 2505.02 and Civ.R. 54. Under the general rules, a court of appеals first applies R.C. 2505.02(B)(1) to determine whether the order “affects a substantial right and whether it in effect determines an action and prevents a judgment.” Wisintainer v. Elcen Power Strut Co. (1993),
{¶ 56} The order in this case is not a final order under R.C. 2505.02 and Civ.R. 54, because it is lacking the certification required by Civ.R. 54. Thus, it fails to meet the procedural criteria of the final order analysis.
{¶ 57} And the оrder fails to qualify in substance as a final order under R.C. 2505.02 as well. As a number of courts of appeals have already determined, an order denying qualified immunity under Section 1983 on a motion for summary judgment is not a final order, because it “merely postpones the final disposition of both the immunity claim and the merits of the case until trial.” Martynyszyn v. Budd, 7th Dist. No. 03-MA-250,
Conclusion
{¶ 58} For the foregoing reasons, I would construe R.C. 2744.02(C) and 2744.09(E) in a manner that would harmonize and give effect to both. In my view, the phrase “any other provision of the law” in R.C. 2744.02(C) is limited to those provisions of law that apply to the chapter under R.C. 2744.09(E). I would hold that the city and its officers have no right to appeal the trial court’s order because it was not a final, appealable order, and I would affirm the dismissal of this case by the court of appeals.