Paula J. Wilkins, Plaintiff-Appellant,
The Village of Harrisburg et al., Defendants-Appellees.
J. Wilkins, pro se.
Peterson, Conners, Swisher & Peer LLP and Istvan Gajary,
for all appellees except Larry Taylor.
1} Defendants-appellees, the Village of Harrisburg
and all the other defendants-appellees (except Larry Taylor),
have filed an application for en banc consideration or, in
the alternative, for reconsideration of our decision of
November 2, 2017, pursuant to App.R. 26(A)(1) and (2).
See Wilkins v. Village of Harrisburg, 10th Dist. No.
2} Appellees have requested this court to consider
this case en banc, pursuant to App.R. 26(A)(2). The purpose
of en banc proceedings is to resolve conflicts of law that
arise within a district. App.R. 26(A)(2); McFadden v.
Cleveland State Univ., 120 Ohio St.3d 54,
2008-Ohio-4914, ¶ 10. These intradistrict conflicts
arise when different panels of judges hear the same issue but
reach different results. Id. at ¶ 15. This
"create[s] confusion for lawyers and litigants and
do[es] not promote public confidence in the judiciary."
In re JJ., 111 Ohio St.3d 205, 2006-Ohio-5484,
3} When presented with an application for
reconsideration filed pursuant to App.R. 26, an appellate
court must determine whether the application "calls to
the attention of the court an obvious error in its decision,
or raises an issue for consideration that was either not
considered at all or was not fully considered by the court
when it should have been." Columbus v. Hodge,
37 Ohio App.3d 68 (10th Dist.1987), citing Matthews v.
Matthews, 5 Ohio App.3d 140 (10th Dist.1982), paragraph
2 of the syllabus. Reconsideration will be denied where the
moving party simply seeks to "rehash the arguments [the
party] made in its appellate brief. " Garfield Hts.
City School Dist v. State Bd. of Edn., 85 Ohio App.3d
117, 127 (10th Dist.1992). An appellate court will not grant
" '[a]n application for reconsideration * * * just
because a party disagrees with the logic or conclusions of
the appellate court.' " State v. Harris,
10th Dist. No. 13AP-1014, 2014-Ohio-672, ¶ 8, quoting
Bae v. Dragoo & Assoc., Inc., 10th Dist. No.
03AP-254, 2004-Ohio-1297, ¶ 2.
4} Here, appellees contend that our November 2, 2017
decision conflicts with Elfers v. Ohio Dept. of Natl.
Resources, 10th Dist. No. 79AP-361 (Dec. 11, 1979) and
Waterman v. Brown, 10th Dist. No. 76AP-623 (Dec. 16,
1976). Alternatively, appellees claim that our decision is in
error because legislative officers are not individually
liable for their legislative activities regardless of their
motive or intent.
5} In Elfers, appellants were denied
commercial fishing licenses by the Chief of the Division of
Wildlife. They brought suit in the Court of Claims of Ohio
alleging that the decision to deny them licenses was a
violation of the Equal Protection Clauses of the Ohio and
United States Constitutions and that the decision was
arbitrary and capricious. The chief allegedly denied the
licenses by means of an adjudicative order based on a
Wildlife regulation that was subsequently determined to be
unconstitutionally vague. The Court of Claims dismissed the
actions for failure to state a claim, and this court affirmed
the dismissals first noting that "many states that have
judicially or legislatively abolished the general defense of
sovereign immunity recognize that immunity remains for a
governmental body when it is acting in a legislative
capacity." Id. The court then went on to hold
that "[t]he actions of the Chief of the Division of
Wildlife, and those imputed to the Department of Natural
Resources, are of such legislative' nature."
Id. Thus, denial of the licenses was based on the
creation of a regulation, a legislative act, and a subsequent
quasi-judicial action based on that regulation by means of an
6} In Waterman, a taxpayer brought an
action in the common pleas court seeking compensatory and
punitive damages for alleged negligence (malpractice) by the
Ohio Attorney General and his assistants in representing the
state of Ohio in regard to a loan to a nursing home that
resulted in a loss to the state of $4 million. The taxpayer
alleged that the attorney general failed to opt out of a
class action in Oklahoma federal court, thus causing the loss
of certain rights to the state of Ohio and ultimately
resulting in monetary damages to the state. The trial court
dismissed the action, and this court affirmed the dismissal
finding that the attorney general and his assistants were
immune from liability "when the basis of the claim is
negligent failure to perform a discretionary duty."
7} Neither of these cases are in conflict with our
November 2, 2017 decision. In our decision, we noted that
appellant Wilkins was asserting "that her third claim
was based on a willful, knowing, and malicious violation of
her due process and civil rights, and therefore the
Harrisburg defendants were acting outside the scope of their
legislative authority." Wilkins at ¶ 31.
8} Additionally, Wilkins has filed a memorandum in
opposition in which contends that she has adequately pled
sufficient facts to support her claim that appellees violated
her due process rights procedurally, and substantively acted
willfully, knowingly, and maliciously in failing to provide
her the requisite notice and opportunity for a hearing, and
that appellees acted outside their legislative authority. In
other words, Wilkins has asserted that appellees were not
acting in their legislative capacity when they allegedly
violated her constitutional rights, and therefore are not
entitled to legislative immunity.
9} Appellees urge reconsideration based on a number
of cases that hold local legislators immune from suit for
their legislative activities. We agree with appellees that
" local legislators are entitled to absolute immunity as
long as they are acting in a legislative capacity.'
" Curry v. Village of Blanchester, 12th Dist.
No. CA2009-08-010, 2010-Ohio-3368, ¶ 27, quoting
Hogan v. South Lebanon, 73 Ohio App.3d 230, 234-35
(12th Dist.1991) citing Haskell v. Washington Twp.,
864 F.2d 1266, (C.A.6, 1988). However, "the scope of
immunity depends on the nature of the activity
involved." Id. At the time we issued our
decision, we were reviewing an oral motion to dismiss, and we
were constrained by our governing standard of review to
presume that all factual allegations of the complaint were
true and to make all reasonable inferences in favor of
Wilkins. Wilkins at ¶ 40. On remand, the
remaining allegations of the complaint with respect to
Wilkins' third claim will stand or fall on the record
that is developed before the trial court. The trial court can
then examine all of the alleged conduct of appellees and
characterize each action as legislative, administrative, or
outside the scope of either. See Haskell at
1278. The degree of immunity will depend on the results of
that determination. Id.
10} Accordingly, we decline to grant the application
for en banc consideration or, in the ...