McKinnon, In re, s. V82-30405

• Decision Date: 21 May 1984
• Docket Number: V82-43426 and V83-51295,Nos. V82-30405,V82-40907,s. V82-30405
• Citation: 476 N.E.2d 1101,16 Ohio Misc.2d 4,16 OBR 438
• Parties: , 16 O.B.R. 438 In re McKINNON et al. * In re NICHOLS. In re JOHNSON.
• Court: Ohio Court of Claims

Page 4

16 Ohio Misc.2d 4

476 N.E.2d 1101, 16 O.B.R. 438

In re McKINNON et al. ^* In re NICHOLS In re JOHNSON.

Nos. V82-30405, V82-40907, V82-43426 and V83-51295.

Court of Claims of Ohio.

Decided May 21, 1984.

Syllabus by the Court

1. R.C. 2743.60(E), which became effective on March 18, 1983, is not to be applied retroactively to cases in which the criminally injurious conduct occurred prior to that date.

2. A single commissioner, as well as a panel of commissioners, has the authority to determine questions of constitutionality, in accordance with the terms of R.C. 2743.55(A).

Jerry R. Hatton, Worthington, for Laura J. McKinnon.

Jeffrey L. Kocian, Cleveland, for Terry Nichols.

Richard E. Reverman, Cincinnati, for Kurt R. Johnson.

Anthony J. Celebrezze, Jr., Atty. Gen., Kevin Kerns, Cordelia A. Glenn, Timothy J. Mangan and Marie Charvat, Columbus, for state of Ohio.

Fred Wendell III, for amicus curiae Joann Rembert.

Jerome Silver, Cleveland, for amicus curiae Betty Goodman.

Eric James Barr, for amicus curiae Grace Preston.

Richard E. McCune, Cuyahoga Falls, for amicus curiae John Kidd.

ZIEGEL, Judge.

Each of the above-captioned cases involves the same basic issue, and they are accordingly consolidated for purposes of appeal to the Court of Claims. That issue is whether R.C. 2743.60(E), which became effective on March 18, 1983, is to be applied retroactively to cases in which the criminally injurious conduct occurred prior to that date. The statute was a part of Am.Sub.S.B. No. 30. Prior to its passage, there was no counterpart in the Victims of Crimes Act. R.C. 2743.60(E) provides as follows:

"Neither a single commissioner nor a panel of commissioners shall make an award to a claimant who is a victim, or who claims an award of reparations through a victim, who, within ten years prior to the criminally injurious conduct that gave rise to the claim, was convicted of a felony or who is proved by a preponderance of the evidence presented to the commissioner or the panel to have engaged, within ten years prior to the criminally injurious conduct that gave rise to the claim, in conduct that, if proven by proof beyond a reasonable doubt, would constitute a felony under the laws of this state, another state, or the United States."

In each of the cases now before the court on appeal, the victim had indeed been convicted of a felony within ten years prior to the criminally injurious conduct.

In the McKinnon case, decided on October 6, 1983, and in the Nichols case, decided on October 21, 1983, the panel followed the recommendations of the Attorney General and the decisions of the single commissioner, and held that the claimants in those cases were disqualified from receiving an award because of the victims' felony convictions within the ten-year period. In the Johnson case, decided November 3, 1983, however, the same panel, without making any reference to either of the two preceding cases, overruled the Attorney General's recommendation, reversed the single commissioner's decision, held that R.C. 2743.60(E) could not be applied retroactively, and ordered the case be referred back to the Attorney General and remanded to a single commissioner for a determination on the merits. As a result of these diverse holdings, the appellants in the first two cases are the claimants, while the Attorney General is the appellant in the last-named case. In this opinion, therefore, the parties are designated as claimants and Attorney General.

The people of Ohio have established a basic principle governing retroactivity in their Constitution. Section 28, Article II thereof provides:

"The General Assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; * * *."

Despite the general nature of this provision, at an early date it was determined that the ban against retroactive legislation is applicable solely to substantive, as opposed to remedial, laws. Rairden v. Holden (1864), 15 Ohio St. 207. See Gregory v. Flowers (1972), 32 Ohio St.2d 48, at 53, 290 N.E.2d 181 , for more recent cases supporting this point of view. It is the Attorney General's contention that R.C. 2743.60(E) is not substantive legislation.

Under the constitutional provision as construed the legislature has no power to enact retroactive substantive laws, but does have the power to pass laws having retroactive application that are nonsubstantive. In such a case, however, the legislature has established a standard to determine whether a nonsubstantive law should be given retroactive application. R.C. 1.48 provides that:

"A statute is presumed to be prospective in its operation unless expressly made retrospective." (Emphasis added.)

Thus, even where nonsubstantive legislation is concerned, there is a presumption that its operation is prospective. That presumption can only be removed by express statements as to retroactivity. In discussion of a predecessor to R.C. 1.48 the Supreme Court in State ex rel. Andrews v. Zangerle (1920), 101 Ohio St. 235, 128 N.E.2d 165, paragraph three of the syllabus stated that:

"The word 'expresssly,' as used in the statute, carries its usual and customary meaning, to-wit: Clear, definite, plain, direct; as stated or written in the statute, and not left to inference or implication."

Insofar as codified R.C. 2743.60(E) is concerned, nothing is stated therein relative to retroactive application. The Attorney General submits that this required expression of retroactive legislative intent is found in Section 5 of Am.Sub.S.B. No. 30, the bill from which R.C. 2743.60(E) evolved, which provides:

"Divisions (A), (B)(9), and (N) of section 2743.51 of the Revised Code, as amended or enacted by this act and to the extent that they relate to residency requirements for victims, life insurance being a collateral source, and increased awards for funeral expenses, and divisions (C)(8) and (D)(1) of section 2743.59, divisions (E) and (F) of section 2743.66, and division (B) of section 2743.72 of the Revised Code, as amended or enacted by this act and to the extent that they relate to assignments of awards of reparations, apply only to claims for an award of reparations that are based on criminally injurious conduct that occurs on or after the effective date of this act. All other provisions of this act apply to claims for an award of reparations that are pending on, or filed on or after, the effective date of this act." (Emphasis added.)

Since R.C. 2743.60(E) is not mentioned in the first sentence of the above-quoted Section 5, the emphasized last sentence applies to it, and this sentence clearly provides that R.C. 2743.60(E) applies to claims pending on March 18, 1983. Counsel for one of the claimants, however, contends that since Section 5 was not codified, it cannot be controlling law.

Certainly, where the language of a statute is unclear or ambiguous it is appropriate to refer to the uncodified text of the original act as an aid in construction. Cf. R.C. 1.49. There is, however, nothing unclear or ambiguous about R.C. 2743.60(E). Where the language of a statute is clear, it is unnecessary to resort to material outside the statute itself to obtain its meaning. The words of the statute speak for themselves. 50 Ohio Jurisprudence 2d (1961) 150, Statutes, Section 175. While the enactment of legislation precedes codification, the statutes are released to the public in the form of officially codified enactments. The purpose of codification is "to collect and embody in one statute all the laws and parts of laws on the same subject." 50 Ohio Jurisprudence 2d, supra, at 67, Section 78. This purpose is not accomplished if, in order to ascertain what the law is, a researcher is required to refer to the printed original statutes, i.e., Ohio Laws, as well as to the Revised Code.

Even though the codification of R.C. 2743.60(E) is silent insofar as its prospective operation is concerned, this court reluctantly concludes that in the enactment of Section 5 of Am.Sub.S.B. No. 30, the General Assembly clearly expressed its intention that R.C. 2743.60(E) should apply to pending cases, such as those now before this court on review, and thus concludes that the requirement of express language of retroactivity in R.C. 1.48 has been complied with, even though awkwardly. Therefore, R.C. 2743.60(E) applies to the cases now being reviewed if the statute is construed as being non-substantive.

If R.C. 2743.60(E) contains substantive language, the legislature, on the other hand, was constitutionally inhibited from making its operation retroactive. As indicated, the Attorney General contends that the statute is non-substantive while the claimants urge its substantive quality, and contend that the imposition of the felony restriction upon their claims for reparations is a new disability on a substantive right.

The parties are agreed on the basic definition of a substantive enactment which comes within the constitutional inhibition against retroactive legislation. This is found in the old federal case of Gospel v. Wheeler (D.N.H.1814), 22 F.Cas. 756, 767, 2 Gall. 105 (No. 13,156), written by Justice Joseph Story:

"Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective * * *." (Emphasis added.)

This definition has been cited with approval in a number of Ohio cases. See, e.g., Weil v. Taxicabs of Cincinnati, Inc. (1942), 139 Ohio St. 198, 39 N.E.2d 148 ; State ex rel. Shady Acres Nursing Home, Inc. v. Rhodes (1983), 7 Ohio St.3d 7, at 9, 455 N.E.2d 489.

The Attorney General places his emphasis on that part of the foregoing definition which speaks of the impairment of vested rights, and contends that until a single commissioner ruled favorably on claimants' claims for reparations there was no vested...