Public officials named in such legal action must be aware of immunity defenses for both the political subdivision and its employees in both the state and federal court systems.

State Law Immunity

Sovereign immunity is a defense against lawsuits available through Ohio Revised Code Chapter 2744 that specifically provides protections for political subdivisions as well as political subdivision employees.

If a public official is a defendant based upon his or her office holder status, he or she will not face individual liability. It will be treated as a lawsuit against the political subdivision, therefore eliminating the possibility of punitive damages being asserted against the individual defendant.

The Ohio Supreme Court determined in Lambert v. Clancy, 2010 Ohio 1483, that allegations contained in a complaint that are directed against an office of a political subdivision render the officeholder as a defendant in his or her official capacity, rather than his or her individual capacity.

Lambert  is significant as it is most favorable in undertaking the immunity analysis of ORC §2744.02 to eliminate as many individual claims and defendants as possible.

Eliminating individual defendants from the litigation also will make it more difficult for plaintiffs to create “genuine issues of material fact” to overcome Motions for Summary Judgment under Ohio Civil Rule 56 or even Motions for Judgment on the Pleadings under Civil Rule 12.

Federal Claims

When political subdivisions and public officials are sued in federal court, determining who was sued, the political subdivision itself or any public official or employee is critical for the assertion of qualified immunity defenses for individual defendants under Sixth Circuit law.

A plaintiff can overcome the qualified immunity defense by either asserting that he or she was subject to a constitutional violation (i.e., Fourth Amendment improper search/seizure) or that his or her constitutional rights were clearly established and were rights that the defendant official should have recognized.

Qualified immunity must be pled as a defense in a federal case or the defense is waived.

As in state court, public officials named as officeholders will be treated in the same position as the political subdivision itself.  It is beneficial to the defense of the case if the number of individual defendants is limited or eliminated because qualified immunity for individual defendants is not an absolute defense.

Often plaintiffs are able to create genuine issues of material fact under Federal Civil Rule 56 and can overcome dispositive motions based upon the qualified immunity defense.

Appellate Options

Another immunity-based strategy to utilize should dispositive motions or motions to dismiss fail is to assert an immediate appeal of the denied motion.

The Ohio Supreme Court decided in Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, that in addition to the option of immediate appeal of state law claims concerning immunity for political subdivision when denied under state law (see Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839), an order denying a motion for summary judgment in which a political subdivision sought federal qualified immunity (i.e., in defense of 42 USC §1983 claims) is also an appealable order.

The use of appeal when immunity has been denied can be a strategic maneuver as it engages the plaintiff further in the litigation process which they may not want (i.e., state appellate process) or with which they are unfamiliar (Sixth Circuit appeal process).

Additionally, both the Ohio state appellate courts and Sixth Circuit Court of Appeals may be more versed in the issues concerning immunity than in the lower courts and there is a possibility of a reversal.

Public officials, therefore, must not only understand the immunity defenses in defending the litigation, but the strategy involved in managing the litigation into the appellate process.

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 Neil D. Schor is an attorney in Youngstown, Ohio. His practice areas include civil litigation, municipal law and commercial law.