Opinion
No. V87-82411.
Decided May 26, 1989.
John Herm Hanna, for the applicant.
Anthony J. Celebrezze, Jr., Attorney General, for the state.
This matter came on to be considered upon applicant's appeal from the November 9, 1988 order issued by the panel of commissioners. The panel's determination affirmed the decision of the single commissioner, denying applicant's claim for an award of reparations.
R.C. 2743.52 places the burden of proof on an applicant to satisfy the Court of Claims Commissioners that the requirements for an award have been met by a preponderance of the evidence. In re Rios (1983), 8 Ohio Misc.2d 4, 8 OBR 63, 455 N.E.2d 1374. In the instant matter, the panel found, upon review of the evidence, that the applicant, Mark Martinez, failed to present sufficient evidence to meet his burden.
The commissioners' decision was based on the applicant's failure to timely file his application within the one-year period of limitations, pursuant to the former requirement contained in R.C. 2743.56(C). The record indicates that the applicant was allegedly assaulted on September 12, 1986, but the reparations application was not filed until October 2, 1987. Former R.C. 2743.60(A) stated:
"Neither a single commissioner nor a panel of court of claims commissioners shall make an award of reparations to any claimant who, if the victim of the criminally injurious conduct was an adult, did not file his application for an award of reparations within one year after the date of the occurrence of the criminally injurious conduct that caused the injury or death for which he is seeking an award of reparations * * *."
The applicant contends that In re Irwin (1987), 33 Ohio Misc.2d 37, 515 N.E.2d 38, is applicable to the instant claim and thus the panel's decision should be reversed to avoid an "unconscionable result." In Irwin, this court extended the period of limitations since the applicant (the decedent's relative) in that claim and the police were unaware that criminally injurious conduct occurred until eleven months after the incident. Irwin involved a death that was initially ruled an accident, but the cause of death was subsequently changed to a homicide. Thus, the applicant was not cognizant that a criminal act occurred and was under this misconception for quite some time. Obviously, the decedent could not provide the true facts of the incident (the circumstances of the matter became clear when an autopsy was performed).
In the case at bar, the applicant was involved in the criminal occurrence. He was aware that a fracas occurred, that he was a participant and that there were numerous witnesses to the incident. The court finds that the applicant's analogy to Irwin is not well-taken and further finds that a strict application of the one-year statute of limitations in this case is not "patently unfair."
In addition, the applicant asserts that the recently amended R.C. 2743.56(C)(2), effective March 14, 1989, should be applied retroactively. Said statutory provision allows an adult victim two years in which to file an application for reparations.
"The issue of whether a statute may constitutionally be applied retrospectively does not arise unless there has been a prior determination that the General Assembly has specified that the statute so apply. Upon its face, R.C. 1.48 establishes an analytical threshold which must be crossed prior to inquiry under Section 28, Article II." (Emphasis sic.) Van Fossen v. Babcock Wilcox Co. (1988), 36 Ohio St.3d 100, 106, 522 N.E.2d 489, 495. R.C. 1.48 states that "[a] statute is presumed to be prospective in its operation unless expressly made retrospective."
In the instant matter, there is no indication contained within the recently amended R.C. 2743.56(C)(2) demonstrating a legislative intent to apply this statute retrospectively. In Kiser v. Coleman (1986), 28 Ohio St.3d 259, 262, 28 OBR 337, 339, 503 N.E.2d 753, 756, the Supreme Court of Ohio stated that where "there is no clear indication of retroactive application, then the statute may only apply to cases which arise subsequent to its enactment." (Emphasis added.) It is the opinion of this court, therefore, that the statute at issue was not intended to be applied retrospectively. (See, in comparison, R.C. 2743.56[C][1] where it is specifically enunciated that the amendment in that statute applies retrospectively.) Thus, the court finds that the applicant's contention in this regard is not well-taken and the applicable limitations period is one year.
In reviewing this matter, the court is guided by R.C. 2743.61(A), which provides, in pertinent part, the following:
"* * * If upon hearing and consideration of the record and evidence, the court decides that the decision of the commissioners appealed from is reasonable and lawful, it shall affirm the same, but if the court decides that the decision of the commissioners is unreasonable or unlawful, the court shall reverse and vacate the decision or modify it and enter judgment thereon."
Upon consideration of the applicant's contentions, the court finds that the applicant has not shown by a preponderance of the evidence that he is entitled to an award of reparations. Based on a review of the file, the applicable law and R.C. 2743.61, it is the opinion of this court that the decision of the panel of commissioners was reasonable and lawful. Therefore, this court affirms the decision of the three-commissioner panel and hereby denies the applicant's claim.
Decision affirmed.
FRED J. SHOEMAKER, J., retired, of the Court of Common Pleas of Franklin County, sitting by assignment.