Conley v. Shearer

• Decision Date: 12 August 1992
• Docket Number: No. 91-1009,91-1009
• Citation: 64 Ohio St.3d 284,595 N.E.2d 862
• Court: Ohio Supreme Court
• Parties: CONLEY, Appellant, v. SHEARER, Appellee.

Page 284

64 Ohio St.3d 284

595 N.E.2d 862

CONLEY, Appellant, v. SHEARER, Appellee.

No. 91-1009.

Supreme Court of Ohio.

Submitted Feb. 26, 1992.

Decided Aug. 12, 1992.

Syllabus by the Court

R.C. 2743.02(F) does not violate the Equal Protection Clauses of the United States and Ohio Constitutions.

On September 29, 1989, Dwayne Conley, appellant, filed a complaint in Butler County Common Pleas Court, alleging that Kurt Shearer, appellee, a Special Agent III employed by the Ohio Bureau of Criminal Identification and Investigation ("BCI"), ¹ "maliciously, recklessly, wantonly, willfully and wrongfully identified and continued to maintain that [Conley] was the person who sold drugs." In addition to malicious prosecution, Conley alleged claims of defamation and a violation of Section 1983, Title 42, U.S.Code. Criminal charges had been filed against Conley but were dismissed upon a showing that Shearer had incorrectly identified Conley as the person involved in the sale of drugs. Conley alleged that, as a result of Shearer's wrongdoing, he lost his job and incurred legal expenses. The complaint did not specify whether Conley was suing Shearer in his individual capacity or his official capacity as an employee of BCI, although it was Shearer's actions as a BCI agent which caused criminal charges to be filed against Conley. Neither the state of Ohio nor BCI was named as a defendant in the complaint.

The Attorney General's office filed a motion to dismiss on behalf of Shearer. The motion argued that the trial court was without subject matter jurisdiction based upon R.C. 2743.02(F), that Shearer was entitled to personal immunity under R.C. 9.86, and that the Court of Claims must initially make a determination with regard to immunity from suit before a court of common pleas could have jurisdiction over the action. After the parties had submitted memoranda but prior to the court's decision on the motion to dismiss, Conley filed an affidavit with the court expressly waiving any right he may have had to sue the state of Ohio because of his claims against Shearer. On April 16, 1990, the common pleas court dismissed the action. The court of appeals affirmed.

The cause is now before this court upon the allowance of a motion to certify the record.

Richard L. Hurchanik, Hamilton, for appellant.

Lee I. Fisher, Atty. Gen., Raul Rosado, Jr. and Simon B. Karas, Columbus, for appellee.

MOYER, Chief Justice.

The issue presented by this appeal is whether R.C. 2743.02(F) violates the Equal Protection Clauses of the United States and Ohio Constitutions. R.C. 2743.02(F) requires a plaintiff who potentially has a claim against the state as a result of a state employee's conduct to first file an action in the Court of Claims for an adjudication of whether the employee is entitled to immunity under R.C. 9.86. For the following reasons, we conclude that R.C. 2743.02(F) is constitutional under both the United States and Ohio Constitutions and, therefore, affirm the judgment of the court of appeals with regard to Conley's state-law claims. However, we reverse the court of appeals' judgment affirming the dismissal of Conley's Section 1983 claim.

Historically, immunity for government officials and employees was derived from the legal fiction that "[t]he King could do no wrong, so any mistake in judgment on the part of the King's officials was an act for which the government would take no responsibility." Civil Actions Against State Government, Its Divisions, Agencies and Officers (Winborne Ed.1982) 230, Section 6.2. This court held many years ago that the state and its officers were immune from tort and other liability for wrongs committed by agents of the state when acting in their official capacity. State v. Franklin Bank (1840), 10 Ohio 91, reversed on other grounds sub nom. Franklin Branch Bank v. Ohio (1862), 66 U.S. (1 Black) 474, 17 L.Ed. 180; Miers v. Zanesville & Maysville Turnpike Co. (1842), 11 Ohio 273.

In 1912, the Ohio Constitution was amended to allow actions to be brought against the state. That amendment to the Constitution, Section 16, Article I, provides in part as follows: "Suits may be brought against the state, in such courts and in such manner, as may be provided by law." This provision was "not self-executing," and constituted only an authorization for subsequent statutes in which the General Assembly could grant its specific consent to be sued. Raudabaugh v. State (1917), 96 Ohio St. 513, 518, 118 N.E. 102, 103. Thus, in the absence of such consent, an action based on tort was not properly maintainable against the state or its officers or employees. Krause v. State (1972), 31 Ohio St.2d 132, 144, 60 O.O.2d 100, 106, 285 N.E.2d 736, 743-744, appeal dismissed sub nom. Krause v. Ohio (1972), 409 U.S. 1052, 93 S.Ct. 557, 34 L.Ed.2d 506.

In 1975, the General Assembly enacted legislation creating the Court of Claims and specifying the forum and manner in which actions may be brought against the state and its officers and employees. R.C. 2743.01 to 2743.72. R.C. 2743.02(A)(1) provides the following:

"The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties, except that the determination of liability is subject to the limitations set forth in this chapter * * *. To the extent that the state has previously consented to be sued, this chapter has no applicability.

"Except in the case of a civil action filed by the state, filing a civil action in the court of claims results in a complete waiver of any cause of action, based on the same act or omission, which the filing party has against any officer or employee, as defined in section 109.36 of the Revised Code. The waiver shall be void if the court determines that the act or omission was manifestly outside the scope of the officer's or employee's office or employment or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner."

In Cooperman v. Univ. Surgical Assoc., Inc. (1987), 32 Ohio St.3d 191, 513 N.E.2d 288, paragraph two of the syllabus, we held that "[a] court of common pleas does not lack jurisdiction over an action against state officers or employees merely because the Court of Claims has not first determined that the act or omission, which is the subject of the action, was manifestly outside the scope of the officer's or employee's office or employment, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner, unless the aggrieved party has filed a suit in the Court of Claims based on the same act or omission. (R.C. 2743.02[A], construed and applied.)"

As a result of Cooperman, the General Assembly enacted R.C. 2743.02(F), which provides:

"A civil action against an officer or employee, as defined in section 109.36 of the Revised Code, that alleges that the officer's or employee's conduct was manifestly outside the scope of his employment or official responsibilities, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner shall first be filed against the state in the court of claims, which has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code and whether the courts of common pleas have jurisdiction over the civil action.

"The filing of a claim against an officer or employee under this division tolls the running of the applicable statute of limitations until the court of claims determines whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code."

Thus, under the unambiguous terms of R.C. 2743.02, the Court of Claims has exclusive, original jurisdiction to determine whether a state employee is entitled to personal immunity under R.C. 9.86.

R.C. 9.86 states:

"Except for civil actions that arise out of the operation of a motor vehicle and civil actions in which the state is the plaintiff, no officer or employee shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer's or employee's actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.

"This section does not eliminate, limit, or reduce any immunity from civil liability that is conferred upon an officer or employee by any other provision of the Revised Code or by case law. This section does not affect the liability of the state in an action filed against the state in the court of claims pursuant to Chapter 2743. of the Revised Code."

If the Court of Claims determines that the employee was acting within the scope of employment, in furtherance of the interests of the state, the state has agreed to accept responsibility for the employee's acts. R.C. 9.86 and 2743.02(A). In that event, only the state is subject to suit, and the litigation must be pursued in the Court of Claims. If the Court of Claims determines that the employee's acts did not further the interests of the state, i.e., the employee was acting outside the scope of his employment, maliciously, in bad faith, or in a wanton or reckless manner, the state has not agreed to accept responsibility for the employee's acts and the employee is personally answerable for his acts in a court of common pleas.

In a similar case recently decided by this court, we held that R.C. 2743.02(F) is a statute which "patently and unambiguously" takes away the common pleas court's original jurisdiction under R.C. 2305.01 in a specific class of cases. State ex rel. Sanquily v. Lucas Cty. Court of Common Pleas (1991), 60 Ohio...