State ex rel. Plavcan v. School Emp. Retirement Sys. of Ohio

• Decision Date: 20 December 1994
• Docket Number: No. 93-2532,93-2532
• Citation: 643 N.E.2d 122,71 Ohio St.3d 240
• Parties: , 96 Ed. Law Rep. 233 The STATE ex rel. PLAVCAN, Appellee, v. SCHOOL EMPLOYEES RETIREMENT SYSTEM OF OHIO, Appellant.
• Court: Ohio Supreme Court

Page 240

71 Ohio St.3d 240

643 N.E.2d 122, 96 Ed. Law Rep. 233

The STATE ex rel. PLAVCAN, Appellee, v. SCHOOL EMPLOYEES RETIREMENT SYSTEM OF OHIO, Appellant.

No. 93-2532.

Supreme Court of Ohio.

Submitted Oct. 24, 1994.

Decided Dec. 20, 1994.

Appellee, Lillian Plavcan, was a member of appellant SERS with over five years' service credit on July 29, 1992, when Am.S.B. No. 346 took effect. She applied for disability benefits on October 1, 1992, some two months later. On November 2, 1992, SERS's medical examiner stated that appellee had become incapacitated in December 1991, i.e., some seven months before Am.S.B. No. 346's effective date, which was also the same month she became sixty. She last received compensation for work in January 1992, which presumably was also her last contributing service, and was some six months before Am.S.B. 346's effective date, but well within the two years prior to the application for benefits.

SERS began paying benefits to the appellee on August 1, 1992, the first day of the first month after Am.S.B. No. 346 took effect, rather than February 1, 1992, the first day of the month following the last day she received compensation, as required by literal compliance with R.C. 3309.33(B)(1). Appellee sought a writ of mandamus to compel SERS to pay benefits effective February 1, 1992, and the court of appeals allowed the writ, holding that Am.S.B. No. 346 was intended to have retroactive effect to permit persons over sixty to apply for disability benefits in conformity with the federal Older Workers Benefit Protection Act of 1990.

Martin, Pergram, Browing & Parker Co., L.P.A., Robin L. Parker and James M. Dietz, Columbus, for appellee.

Lee Fisher, Atty. Gen., and Christopher S. Cook, Asst. Atty. Gen., for appellant.

PER CURIAM.

We affirm the decision of the court of appeals for the following reasons.

As amended by Am.S.B. No. 346, effective July 29, 1992, R.C. 3309.39 states in pertinent part:

"(A) The school employees retirement system shall provide disability coverage to each member who has at least five years of total service credit.

"Not later than October 16, 1992, the school employees retirement board shall give each person who is a member on the effective date of this amendment [July 29, 1992] the opportunity to elect disability coverage either under section 3309.40 of the Revised Code or under section 3309.401 of the Revised Code.

" * * *

"(B) Application for a disability benefit may be made by a member, by a person acting in the member's behalf, or by the member's employer, provided the member has at least five years of total service credit and has disability coverage under section 3309.40 or 3309.401 of the Revised Code. * * *

The benefit payable to any member who is approved for a disability benefit shall become effective on the first day of the month next following the later of the following:

"(1) The last day for which compensation was paid;

"(2) The date on which the member was first incapacitated by the disabling condition.

" * * *

"(D) Application for a disability benefit must be made within two years from the date the member's contributing service terminated * * *."

In its first proposition of law, SERS argues that R.C. 3309.39 should not be applied retroactively because that would provide for payments that were not authorized until July 29, 1992, Am.S.B. No. 346's effective date. This argument invokes R.C. 1.48, which states in part:

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

In Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph one of the syllabus, this court stated in part:

"Upon its face, R.C. 1.48 establishes a threshold analysis which must be utilized prior to inquiry under Section 28, Article II of the Ohio Constitution [constitutionally prohibited retroactivity]."

The court of appeals held that although Am.S.B. No. 346 contained no express provision concerning retroactivity, it was "obvious" that the bill was intended to comply with the federal Older Workers Benefit Protection Act "at the first available time." The court of appeals apparently, though not expressly, based this conclusion on Section 5 of Am.S.B. No. 346, the emergency clause, which stated that the emergency was necessitated by the federal Act, "which requires that state retirement systems amend by October 16, 1992, any disability benefit law that discriminates among system members on the basis of age."

The federal Act was not otherwise cited or entered into evidence in the court of appeals. SERS attaches a copy of the Act and some excerpts from the Congressional Record concerning the Act to its appellate brief, and both parties refer to the federal Act in their briefs. However, these materials are outside the record. States apparently had to comply with the federal law by October 16, 1992 (Section 5 of Am.S.B. No. 346), but this did not prove that retroactivity of state laws was required. Accordingly, we decline to affirm the court of appeals' decision on grounds that the federal Act required retroactivity.

Upon further examination, however, we conclude that R.C. 3309.39, as amended by Am.S.B. No. 346, is not retroactive; rather, it confers present eligibility for benefits based on examination of past events. A member of the system has up to two years after "contributing service" ends to apply for benefits. Disability determination necessarily takes place after application and thus in the present, although the timing of benefits payments is related back to the date of the first incapacity or the date the applicant last received compensation, whichever is later. Statutes that reference past events to establish current status have been held not to be retroactive. In State ex rel. Bouse v. Cickelli (1956), 165 Ohio St. 191, 59 O.O. 261, 134 N.E.2d 834, we denied a candidate for Congress a place on the 1956 Democratic primary ballot because of former R.C. 3513.191, which, as amended effective January 1, 1956, prohibited a candidacy if the candidate had voted in another party's primary within the previous four calendar years. The candidate had voted in the Republican primary in 1952. Before January 1, 1956, the law had placed only a two-year restriction on such voting. The candidate sought a writ of mandamus compelling his name to be placed on the ballot. We held:

"It [R.C. 3513.191] is not retroactive simply because the test involves a time factor extending prior to the effective date of the amendment. The test is to be applied to future cases, i.e., cases after its effective date." 165 Ohio St. at 192, 59 O.O. at 262, 134 N.E.2d at 835.

Similarly, eligibility under R.C. 3309.39 is not being retroactively conferred; it is established in the present based on past events, just as disqualification in...