*1
City
Aрpellants.
Summerville,
Appellee,
al.,
Admr.,
Park et
of Forest
Park,
v. Forest
as Summerville
[Cite
221,
Ohio St.3d (No. 2010.) 2009-2106 Submitted October 2010 Decided December O’Connor, J. In appeal, reconcile with we of a summary judgment
determine whether the denial motion for which employee immunity subdivision or its sought qualified federal final, brought claims under Title is a appealable Section U.S.Code order. governs political-subdivision immunity. Pursuant orders denying employees immunity subdivision final, under of law any provision appealable orders. R.C.
2744.01(D)defines “law” to laws. the term include fedеral R.C. 2744.09 exceptions applicability sets forth 2744. Pursuant to civil claims chapter upon based alleged violations federal constitution or statutes. conflict as the specifical- inasmuch former
{¶ law, ly under applies allowed federal the latter precludes application while to civil actions on premised statute, violations of law. As the more recent and more that an prevails over R.C. we hold in which an of a summary judgment order motion for employee from claims sought subdivision is a Title U.S.Code *2 Background
Relevant аppellant for police and Hall are officers Pape Corey Adam Appellants Park, 15, 2005, and Pape Officers Hall city September On of Forest Ohio. Summerville, call Leola who telephone appellee, to a 9-1-1 responded husband, Summerville, may Roosevelt have committed suicide. reported that her in times with multiple Mr. stab himself the chest Pape Officer saw Summerville himself, to stabbing a ordered Mr. stop what looked like knife. He Summerville order, to with the Officer comply Pape and Mr. Summerville refused when Summerville, lungеd did not Mr. who at deployed his taser. The taser subdue Hall shot Mr. simultaneously with the knife. Officers and Pape Pape Officer He died a result of the wounds. gunshot Summerville. 6, 2007, Summerville, in individually capacity Mrs. and her September On estate, Park, Forest complaint against
as administrator of her husband’s filed Hall, Kenneth and causes of Hughes, Pape asserting Police Chief Officers (2) (1) of force under indifference action for excessive use Section deliberate (3) in to medical care under Section deliberate failing provide adequate (4) in trаin failing adequately wrongful indifference to under Section death (6) 2125.01, (5) distress, loss negligent under R.C. infliction of emotional of consortium. Hughes summary judgment and Police Chief moved for on all Appellants immunity were on They argued they
claims. entitled to the state-law claims to 2744. and Hall pursuant Hughes, Pape, they also claimed of qualified immunity1 were entitled for the violations Section relating Forest Park did not claim to Summerville’s Section 1983 1983. who, provides: “Every person any statute, Section Title U.S.Code under color of {¶ a} ordinance, custom, any Territory Columbia, regulation, usage, or of or or the District of subjects, subjected, any person causes to be citizen within or of the United States or other the jurisdiction by deprivation rights, privileges, thereof to the or immunities secured the laws, party injured equity, in an action at Constitution shall be liable suit section, proper proceeding plaintiff for redress.” To establish claim under this must show that (1) (2) question by person acting the committed law and the conduct was color of state plaintiff privileges, deprived rights, conduct or immunities secured the United States Corp. Constitution or other federal law. St. Clair v. Cleveland 550 N.E.2d 456. officers, officials, including discretionary generally police perform Public who functions {¶ b} damages for in a action if shielded civil Section 1983 “clearly rights established or constitutional of which a their conduct violate person Fitzgerald would reasonable have known.” See Harlow v. 457 U.S. 2727, 73 L.Ed.2d S.Ct. not did respondeat superior Instead, argued that the doctrine city
claims. for the officers’ conduct. it was liable and therefore apply, on the in favor of judgment appellants granted summary The trial court failing indifference 1983 claim for deliberate claims and the Section state-law summary judgment also granted care. The court adequate medical provide summary trial denied all claims. The court Hughes Chief on favor of Police to Summerville’s Section 1983 respect and Hall with judgment Pape Officers claim deliberate city claim force and to the on for excessive train. failing adequately indifference in on trial court’s denial of Appellants appealed the Appeals. appeal District Court of notice
Section 1983 claims the First related because authority was filed *3 requested The city to Officers and Hall. qualified immunity Pape to the denial of its jurisdiction over claimed appeals pendent appellate that the court of exercise Forest Park’s involving City appeal [were] “the the of errors because issues defendants, the inextricably relating appeal with the of intertwined issues Corey Adam Hall.” Pape and that argued appeal. Summerville moved to dismiss She brought pursuant 2744 did not to claims Section final,
therefore,
not
summary judgment
appeal-
trial court’s denial of
was
a
appeals granted
able order. The court of
Summerville’s motion and dismissed
of
appeal
issuing
opinion.
accepted discretionary
without
an
We
review
of
which
“A trial
appellants’
proposition
sole
states:
court’s decision overrul-
in
a
its
ing
Summary Judgment
political
a Motion for
which
subdivision or
§
42
employee
brought
from claims
1983 is
sought
pursuant
U.S.C.
is, therefore,
an
an
final
denying
alleged immunity’
order
‘the benefit of
2744.02(C).”2
Park,
appealаble order under R.C.
Summerville v. Forest
124 Ohio
1473,
Analysis
“
it
‘It
that an order must be final before
can be
is well-established
final,
by an
If an
is not
then an
court
appellate
appellate
reviewed
court.
order
”
Xenia,
77,
Ohio St.2d 2744.02(C), summary judgment the denial of a motion for to R.C. рursuant employee sought subdivision or its political which and, final, appealable 1983 is a order there
from claims fore, an rule. exception 2744.02(C), order that denies a subdivision or political Under R.C. “[a]n an alleged immunity
an
of a
subdivision the benefit of
employee
of the law is a final
provided
order.”
Hubbell,
77,
we held
an
employee
immunity,
seeks
an order
denies the benefit of
case,
In
immunity is a
order.”
we reversed the dismissal of
immunity.
an
from the denial of
on a claim of state-law
expanded upon
Twp.,
We
Hubbell
Sullivan v. Anderson
* * *
83,
{¶ 15} 2744.02(C) to the denial of the of an expressly applies alleged immunity benefit 2744.01(D) provided any of law. R.C. defines the term “law” for provision purposеs Chapter provides 2744 and that “law” means of “any provision constitution, statutes, or rules of the United or of this state.” States 2744.01(D) 2744.02(C) terms of express render the denial of afforded under or law a state order. However, 2744 does not pursuant Chapter
{¶ 16} “[cjivil of or upon alleged claims based violations the constitution States, except provisions statutes of the United that the of section 2744.07 of the civil Revised Code shall such claims related actions.” This case action, allegations question involves a civil and the are based federal law- upon Hall Pape qualified immunity. Section 1983. And Officers claim federal 2744.09(E) renders R.C. Appellee argues inappli- because R.C. 2744.02(C) laws, cable to civil actions based on violations of federal motion for appellants’ and the trial court’s denial of apply, does final, appealable is not a order. 2744.09(E) construe the statutes to determine whether R.C. We must {¶ 17} 2744.02(C) that it not. to this case. We hold does inapplicable renders R.C.
Statutory Interpretation
of the statute itself to
plain language
“We must first
look to the
Hubbеll,
tions, a
upon
interpret
may
court called
its
invoke rules of
legislative
construction
order to arrive at
intent.”
Bur. Motor
Cline Ohio
(1991),
Vehicles
61 Ohio St.3d
573 N.E.2d
Meeks v.
citing
Papadopulos
16 O.O.3d
that R.C. apply only immunity pursuant denial it would not have “or added the the law” to that section. Conversely, appellee argues plainly forbids thе *5 2744.09(C),
application
Chapter
including
R.C.
to civil claims
and, therefore,
brought pursuant
to federal law
the denial of federal
final,
immunity
appealable
clarity
is not a
order.
contends that the
Appellee
fact that
across
statutory
appellate
scheme is evidenced
courts
uniformly
have
refused to
R.C.
2744 to federal causes of action
22549,
{¶28}
2744.02(C)
1.51
to
requires
initially,
attempt
we
statutes,
reconcile the
if possible,
effect to both.
In re Petition to Annex
320 Acres to S. Lebanon
although generally will render orders denying alleged immunity subdivisions and their employees immediately appealable, provi- sion Assembly to the class of cases that the General excluded from the dictates of language virtue of the R.C. 2744.09. Appellee interpretation meaningless contends such would not render “any provision of the law” because “federal claims are far from the only potential liability source for By way subdivisions.” of example, appellee (providing cites R.C. 2305.34 immunity from certain tort for liability water-supply operators) and R.C. 2305.39 (providing immunity damages by persons responding to оil discharges). Appellee’s attempt Appellee’s reconcile the statutes fails. inter- duty indemnify employees 3. R.C. 2744.07 relates to the to defend and and is subdivisions present appeal. not at issue in the to claims application would preclude of the statutes pretation fact that R.C. ignores This interpretation under federal law. of law and available expressly applies 2744.01(D) to include federal law. defines the term “law” *7 2744.02(C) 2744.01(D), forth in R.C. R.C. virtue of the definition set By time, federal law. At the same to the denial of under expressly aрplies 2744.02(C) 2744.09(E) R.C. application chapter (including forbids the R.C. 2744.01(D)) cannot on federal law. These statutes be to civil actions based we must applied so as to effect both. reconciled analysis under R.C. 1.51 and 1.52. continue with set forth in R.C. 1.51 and statutory the rules of construction Applying can
1.52, general that a statute will unless the statute be specific prevail we note adoption shown to the later of the two and the manifest intent General be Annex, In re Petition to 64 Assembly general provision was to have the control. 594,
Ohio St.3d at
based on
violations of federal
that an
an
ly provides
denying
employee
subdivision the
an alleged immunity
any provision
(including
benefit of
of law
2744.01(D))
final,
appealable
federal law virtue of R.C.
order. Pursuant to
1.52,
statute,
R.C. 1.51 and
as the more recent and
a trial
prevails. Accordingly,
court’s decision
motion
judgment in which an
of a
subdivision
immuni-
employee
sought qualified
ty
brought pursuant
from claims
to Section 1983 is a
order under
Expressio
The Maxim
Unius Est Exclusio Alterius Does Not Apply
Appellee argues
expressio
that under the maxim
unius est exclusio
alterius, a
specifies
exception
general
statute
one
rule is assumed to
(1997),
221,
exclude all other
Thomas v. Freeman
exceptions. See
legislature attempted
4.
The
to amend R.C.
to include the relevant
1997.
350,
Laws,
II,
(2001),
No.
146
Part
v. Ackman
91
Am.Sub.H.B.
Ohio
3867. See Stevens
Ohio St.3d
182, 190-191,
However,
224-225, Applying apply 2744 does not rule that R.C. exception 2744.09lists one law—that violations of federal upon civil claims based to list failure Assembly’s claims—the General to such 2744.07 exceptions thаt no other its intent illustrates exceptions disagree. We prohibition. alterius does exclusio unius est expressio canon “[T]he expressed when the items only it has force or statutory listing grouping; every that items series,’ justifying the inference group members of ‘associated Barnhart choice, not inadvertence.” deliberate were excluded not mentioned L.Ed.2d (2003), 123 S.Ct. 537 U.S. Coal Co. Peabody 152 L.Ed.2d 122 S.Ct. 535 U.S. v. Vonn United States citing U.S.A., Inc. v. in Chevron explained Court Supreme States United 73, 81, 122 L.Ed.2d 82: 536 U.S. S.Ct. Echazabal missing, so is exclusiveness is suggesting statutory language “Just demonstration, exprеssion-exclusion of an extrastatutory ingredient that essential *8 The negative implication. bespeaks an omission of terms from which the series that should things or more terms or a series of two identifying canon on depends hand, supporting in circumstances abridged hand in which is go understood to be excluded.” have been meant be that term left out must a sensible inference including one by appellee’s argument persuaded We are not 2744.09(E), intended to legislature exception to the broad of not contain a series does exсeptions. all other preclude must that terms left out Assembly’s intent that illustrates the General exceptions Further, enacted almost was intentionally excluded. have been specifically did not exclude legislature The two decades after R.C. did provision because the prohibition from the not exist. yet
Legislative Policy Considerations
considerations.
legislative policy
is consistent with
holding
Our
2744,
stating
protections
“the
Chapter
enacted R.C.
Assembly
General
subdivisions
employees
political
subdivisions and
of
political
affordеd to
of
orderly operation
in order to ensure the continued
urgently
act are
needed
governments
provide
of local
ability
and the continued
governments
local
No.
health,
to their residents.” Am.Sub.H.B.
safety
services
public peace,
Hubbell,
1,1733.
115 Ohio St.3d
Laws, Part
noted
141
We
“
statutory purpose
is immune from liаbility usually pivotal to the ultimate outcome of a lawsuit.
Early resolution of the issue of a political whether subdivision is immune from liability pursuant to R.C. is beneficial to both of If parties.
appellate court holds that immune, subdivision is can litigation end, come to an early with the same outcome that otherwise would have been trial, only reached resulting after in a savings parties to all attorney costs and fees. if Alternatively, the appellate court holds that immunity does not apply, that early will finding encourage the politicаl subdivision to promptly settle with the victim than pursue rather a lengthy trial and appeals. scenario, Under either plaintiff both the and the may time, effort, subdivision save the ” expense of a trial sic.) and appeal, which could take years.’ (Emphasis Id. at ¶ 25, quoting Burger v. Cleveland 188, 199-200, Hts. “ Stratton, N.E.2d 912 (Lundberg J., dissenting). ‘As the Assembly General envisioned, the determination of immunity could be prior made to investing the ” * * time, effort, expense courts, of the attorneys, parties, and witnesses *.’ ¶ 26, at Id. quoting Burger Stratton, J., at 200 (Lundberg dissenting). These policy considerations equally whether thе immunity in
question is based on 2744 or another qualified Indeed, immunity. applied courts have a similar ration- ale holding orders denying public official the benefit of See, are final and appealable. e.g., Mitchell v. Forsyth 472 U.S. 511, 525-530, 105 S.Ct. Qualified L.Ed.2d 411. immunity “is an * * * iwinunity suit rather than a mere defense to liability; it is effectively lost if a case is erroneously permitted sic.) to go to trial.” (Emphasis Id. at 526. Qualified immunity provides immunity only from liability but from the *9 “ “consequences” suit, of a including ‘the costs of subjecting officials to the risks of trial —distraction of officials from governmental duties, their inhibi- ” tion of disсretionary action, and deterrence of people able from public service.’ Id., quoting Harlow v. Fitzgerald 457 U.S. 102 S.Ct.
L.Ed.2d 396. Failure to effect to the language of barring immediate appeal denials of qualified immunity for alleged violations of Section 1983would defeat the purpose for which the immunity exists.
Conclusion 2744.02(C), Pursuant to an {¶ order that an 41} denies employee of a political subdivision immunity from liability any provision of law a is final order. Although this section conflicts with R.C.
prevails as the more recent and statute. an order denying motion for summary judgment in which a political subdivision or employee its 1983 is brought from claims under Section qualified immunity
sought to R.C. Accord- dismissing appeal. erred in the officers’ appeals The court the cause to the court of we reinstate the and remand ingly, opinion. consistent with this proceedings further reversed,
Judgment and cause remanded. Lundberg Stratton, O’Donnell, Cupp, JJ., concur.
Brown, C.J., JJ., Lanzinger, Pfeifer dissent.
Brown, C.J., dissenting. in majority holds that the denial of Today
{¶ 43} in court that than all disposes Section Title U.S.Code action state of less against immediately govern- claims all Because the statute parties appealable. of an order subdivision or its
ing appealability employee to civil liability upon benefit does claims based statutes, I respectfully violations dissent. 2744.02(C)provides: {¶ 44} “An order that denies a or an of a employee subdivision
{¶ 45} alleged immunity provided subdivision the benefit of any other of the law is a final order.” chapter provision law,” Appellants phrase, any provision claim that the “or other of the law, applies
means the statute to actions under federal 1983 actiоns in courts. bolster their with the Appellants argument Section 2744.01(D), definition of “laws” in R.C. which provides: “ constitution, statutes, ‘Law5 any provision means of the or rules of the * *
United States or of this state Thus, according appellants, phrase “or laws, expressly law” R.C. includes federal such as 2744.01(D). operation of the definition of “law” R.C. However, R.C. prohibits application any statute including to a cause of action under federal
such as the federal causes of action at issue here. R.C.
provides: to, to, the following: “This and shall not be construed to
{¶ 51} “ *** “(E) violations of the constitution or upon alleged Civil claims based
{¶ 52} States, 2744.07 of of the United that the of section the except statutes shall to such claims or related civil actions.” Revised Code 2744.09, Thus, express under the terms of R.C. the to claims under federal law. statutes, I recognize that there is tension between these two but unlike I A majority, do not find these two statutes irreconcilable. reasonable construction, a harmonizing construction of these two statutes would be under immunity may which an order be under appealed immediately 2744 or except provisions expressly those from the еxempted chapter by procedural
and its dictates do not to civil claims based upon alleged reasonable, violations of federal constitutional or law. This reading statutes, majority’s harmonizes both and avoids the resort to a of statutory rule construction that renders the meaningless. Accordingly, we should apply ordinary regarding appeal- rules
able orders to this
For an
appealable,
satisfy
case.
order to be
it must
both R.C.
rules,
2505.02 and Civ.R. 54.
applies
Under
court of
first
2505.02(B)(1)
to determine whether the order
right
“affects
substantial
whether it in effect
an
prevents
determines
action and
a judgment.” Wisintainer
v. Elcen Power Strut Co.
54(B) that “there is no just delay.” reason for Id. The trial court’s use of Civ.R.
54(B) certification ais matter of discretion. Id. order this case is not a final order under 2505.02 and Civ.R. Thus, because it is lacking required by certification Civ.R. 54. it fails to
meet procedural analysis. criteria of the final order And the qualify order fails substance as а final order under R.C. determined,
2505.02 as well. As a number of
of appeals
already
courts
have
denying qualified immunity
on a
Section 1983
motion for
order,
judgment is not a final
it “merely postpones
because
the final
disposition
both the
claim and the
until trial.” Martynyszyn
merits
case
Budd,
03-MA-250,
Conclusion 2744.02(C) and reasons, I would construe foregoing For the In my effect to both. harmonize and in a manner that would is limited in R.C. of the law” view, “any рhrase 2744.09(E). I would under R.C. of law those trial court’s order right have no city and its officers hold that the order, affirm the dismissal and I would it was not because appeals. court of this case JJ., opinion. foregoing concur and Lanzinger,
Pfeifer Mezibov, appellee. D. for and Marc Law Offices of Marc Mezibov Barbiere, D. Powers, Jay E. Maundrell, Lawrence Schroeder, Barbiere & Patton, for appellants. K. Co., L.P.A, Byron, L. Rebecca Schal-
Schottenstein, Stephen Dunn Zox & Gotherman, Smith; urging reversal tenbrand, and John Stephen J. Municipal League.
amicus curiae Ohio
Dinkiеr,
rever-
L.L.C.,
Jamey
Pregón, urging
T.
Lynette
Pregón,
Dinkier
Attorneys.
Trial
Association of Civil
sal for amicus curiae Ohio
Appellant.
Faraj,
Ohio, Appellee,
v.
The
Faraj,
[Cite as State v.