[Cite as Wilkins v. Harrisburg, 2018-Ohio-759.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Paula J. Wilkins,                                 :

                 Plaintiff-Appellant,             :

v.                                                :               No. 17AP-274
                                                              (C.P.C. No. 12CV14070)
The Village of Harrisburg et al.,                 :
                                                             (REGULAR CALENDAR)
                 Defendants-Appellees.            :


                                           D E C I S I O N

                                      Rendered on March 1, 2018


                 Paula J. Wilkins, pro se.

                 Peterson, Conners, Swisher & Peer LLP and Istvan Gajary,
                 for all appellees except Larry Taylor.

                  ON APPLICATION FOR EN BANC CONSIDERATION OR,
                      IN THE ALTERNATIVE, RECONSIDERATION

TYACK, J.
        {¶ 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. 17AP-274, 2017-Ohio-8551.
        {¶ 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]
No. 17AP-274                                                                                  2


confusion for lawyers and litigants and do[es] not promote public confidence in the
judiciary." In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, ¶ 18.
       {¶ 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
No. 17AP-274                                                                                 3


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 adjudicative order.
       {¶ 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." Id.
       {¶ 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
No. 17AP-274                                                                               4


(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 alternative, for reconsideration.
                                                  Application for en banc consideration or,
                                                 in the alternative, reconsideration denied.


                               SADLER, J., concurs.
                     LUPER SCHUSTER, J., concurs in judgment only.
                              _________________
