Opinion
No. V86-48261.
Decided May 27, 1993.
Richard A. Hemphill, for the claimant.
Lee Fisher, Attorney General, for the state.
On August 14, 1987, the single commissioner issued an opinion and order that denied applicant Glenn M. Gaines' claim for an award of reparations. The denial was based upon the finding that the reparations application was not timely filed.
On September 14, 1987, the applicant timely filed an objection and notice of appeal from the August 14, 1987 determination. The applicant's objection was heard before this panel on December 3, 1987. Both applicant's counsel and the Attorney General appeared at the hearing and made oral argument.
In his objection and brief and at the hearing, counsel for the applicant contended the one-year statute of limitations should be tolled in equity for the period after the criminally injurious conduct during which the applicant was psychologically unable to prosecute his claim.
In response, the Attorney General argued the single commissioner's denial of this claim should be affirmed because R.C. 2743.56(C)(2) and 2743.60(A), in effect at that time, clearly stated that a reparations application must be filed within one year after the date of the criminally injurious conduct.
As mentioned above, this case involves the application of two related provisions of the Ohio Revised Code which, with rare exceptions, have been held to be mandatory and jurisdictional.
The effective R.C. 2743.56(C)(2) provided as follows:
"(C) All applications for an award of reparations shall be filed as follows:
"* * *
"(2) If the victim of the criminally injurious conduct was an adult, within one year after the occurrence of the criminally injurious conduct."
R.C. 2743.60(A) works in conjunction with the foregoing provision and states in pertinent part:
"(A) 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 or who, if the victim of that criminally injurious conduct was a minor, did not file his application for an award of reparations within the period provided by division (C)(1) of section 2743.56 of the Revised Code."
The single commissioner applied these sections without considering the mental condition or mental capacity of the applicant, both before and after the occurrence of the criminally injurious conduct, up to and including the date of filing the reparations application. Because we consider the applicant's mental competency a material and dispositive factor in our decision in this case, a more detailed history of this cause than that apparent from the single commissioner's decision is indicated. The essential chronology is, seriatim:
1. The applicant is a high school graduate, who had some post-graduate education at Columbus Technical Institute.
2. Until the date of the alleged criminally injurious conduct, he was gainfully employed as a security guard. He was laid off on that date (prior to the incident) and has not worked since.
3. Upon release from the hospital, he employed a lawyer and advanced the $7.50 filing fee.
4. The medical evidence suggests that the criminally injurious conduct which, inter alia, involved a severe head injury (administered, incidentally, by a baseball bat), either caused or aggravated a theretofore latent psychotic condition, with a resultant diagnosis of paranoid schizophrenia.
5. The clinical observations were confirmed by the applicant's demeanor and conduct on the witness stand. He manifested an obvious acute disorientation as to time and place — particularly the former.
6. By reason of his disorientation, he was unable to account for his whereabouts during the time frame when his application should have been filed in order to avoid the running of the statute of limitations.
7. In the meantime, the attorney who was originally employed became a judge, and the application was not filed timely. It was filed some thirty-one days late by his present attorney of record. The record is silent as to any communication from the former attorney to client, or vice versa, as the statutory "D-day" approached.
8. Following his release from hospitalization incident to the original injury and during the ensuing year, the applicant was intermittently hospitalized and treated for his psychotic condition. His last two hospitalizations prior to the expiration of the limitations period were in May and June 1986. His whereabouts during the period when the application could have been timely signed and filed, apparently, cannot be ascertained.
At the outset, we emphasize that we do not consider the applicant's employment of a lawyer shortly after his initial discharge from the hospital (following treatment for injuries) in September 1985 as a legally relevant factor in this case. If, the single commissioner's decision was — or should eventually be held — correct, the controversy is one for resolution between the applicant and his erstwhile lawyer. On the other hand, if, consonant with our holding herein, the limitations period was tolled by reason of the mental incompetency of the applicant, his interim representation by a lawyer should not affect the tolling of the limitations period any more than the appointment of a general guardian, whose powers to act on behalf of an incompetent are infinitely more comprehensive than those of an attorney. See In re Estate of Gress (P.C. 1944), 40 Ohio Law Abs. 172, 28 O.O. 268, 13 Ohio Supp. 70, and the related discussion in In re Traylor (1989), 61 Ohio Misc.2d 772, 584 N.E.2d 1377.
Again, assuming incompetency during the viability of a cause of action ( viz., from accrual thereof to the expiration of any applicable limitations period), the mental incompetent is incapable of exercising effective superintendence over his lawsuit, by way of client inquiry, demand for relevant information, response to his lawyer's correspondence, or functioning in a meaningful way in any of those myriad instances where cooperation between lawyer and client is essential to the successful prosecution of litigable matter.
Insofar as the law applicable to this case is concerned, we note that over the years on both the panel level and on the level of the judge of the Court of Claims, there have been conflicting opinions as to the applicability of the tolling provision of R.C. 2305.16 to the Victims of Crime Act (hereafter the "Act"). See In re Miracle (June 7, 1988), Ct. of Cl. No. V86-43048tc, unreported; In re Howell (June 26, 1985), Ct. of Cl. No. V84-30011jud, unreported; In re Brown (Oct. 8, 1986), Ct. of Cl. No. V85-56561jud, unreported; see, also, discussion in In re Traylor, supra.
Given this decisional conflict between the highest and final appellate authority(ies) within the framework of the Act (R.C. 2743.20), we would gather that we may well be vouchsafed some discretion in determining which precedent to follow. Seizing upon this privilege, we unhesitatingly aver that we are not deciding this case based upon the applicability of R.C. 2305.16. Said section, unequivocally, applies only to actions under "sections 2305.04 to 2305.14, inclusive, and sections 1302.98 and 1304.29 of the Revised Code * * *." One may search in vain for any inclusion of, or reference to, R.C. Chapter 2743 or any of its component sections.
Perhaps a reversal of the decision of the single commissioner could be better grounded upon the application of the principle of "equitable logic" as enunciated by Judge Cline in In re Irwin (1987), 33 Ohio Misc.2d 37, 515 N.E.2d 38, or what may be referred to as a judicially created "relief from the time limitations(s)" of the Act where "warranted in furtherance of the purpose for which the [crime victim's] program was enacted." The last expression is a paraphrase of Judge Tyack in In re Staab (Jan. 30, 1986), Ct. of Cl. No. V84-35048jud, unreported. Both of these cases were the subject of more extended discussion in Traylor, supra, which does not require repetition here.
However, in order to obviate an indiscriminate emasculation of the limitations provisions — and possibly other provisions of the Act — this panel is loath to enlarge upon these judicially promulgated equitable departures from the explicit language of the cited limitations provisions of the Ohio Revised Code.
Of course, presented with a case which is factually apposite to Irwin and Staab or any other decision of a judge of this court affecting the application of the quoted limitations provisions, we would be justified and, indeed, obliged to apply and follow the pertinent precedent. The case at bar, while it is, in our judgment, worthy of equitable consideration, is not, in our judgment, sufficiently consonant on the facts with Irwin and Staab to justify our assuming the power of decision on equitable grounds, which power, in our judgment, resides only in the judges of the court and not in a single commissioner or a panel of commissioners. Our conclusion in this regard is grounded upon both practical and legal considerations, as follows:
1. The danger of (in effect) abrogating the otherwise seemingly unqualified provisions of the then effective R.C. 2743.56(C)(2) coupled with R.C. 2743.60(A), as a result of a proliferation of equitably motivated decisions by a plethora of commissioners in hard cases which eventually result in bad — if not chaotic — law.
2. R.C. 2743.03(A) provides in pertinent part that "the Court of Claims has * * * jurisdiction to hear appeals from the decisions of the Court of Claims commissioners. The court shall have full equity powers in all actions within its jurisdiction. * * *" (Emphasis added.) It is clear that the "court" in the persons of its judges is a separate and distinct entity from the body of Court of Claims Commissioners acting singly or as a panel. It is equally obvious that only the court in the persons of its judges is vouchsafed equity powers.
3. Furthermore, R.C. Chapter 2743, in our judgment, otherwise preserves a distinct difference in the authority and powers of judges of the Court of Claims, vis-a-vis the posture, power and (quasi) judicial authority of commissioners. These are differences of kind rather than degree. Evidence of this is noted in divers sections of the Act, e.g., R.C. 2743.63, proscribing the exercise of contempt powers by commissioners. More noteworthy are R.C. 2743.121(A) and (B), which create a subtle, but nonetheless, indisputable distinction between the "court of claims" (obviously comprehending the judges thereof) on the one hand and commissioners on the other. In other words, the commissioners constitute a collective statutory infrastructure of the Court of Claims under the Act, but are not the "court" in the same sense as the judges thereof. Judge Cline in Irwin explicitly recognized the equity powers of judges; he made no mention of commissioners. Id., 33 Ohio Misc.2d at 40, 515 N.E.2d at 40. Furthermore, he forcefully expressed a judicial imperative to the effect that "* * * [t]he court must use a case-by-case analysis to remedy situations that occur which will inevitably lead to unconscionable results." (Emphasis added.) Id. at 39, 515 N.E.2d at 40. Judge Tyack's statements in Staab, quoted infra, employed different verbiage but were conceptually identical to the remarks of Judge Cline.
4. Moreover Section 18, Article IV, Ohio Constitution provides in pertinent part that "The several judges of * * * such other courts as may be created, shall, respectively, have and exercise such power and jurisdiction, at chambers, or otherwise as may be directed by law."
By law, judges of the Court of Claims are granted the equity jurisdiction as previously noted in paragraph 2, supra. The jurisdiction of commissioners is legislatively confined in R.C. 2743.52(A) to "jurisdiction to make awards for reparations for economic loss arising from criminally injurious conduct, if satisfied * * * that the requirements for an award of reparations have been met." Equity powers could hardly be implied from this language.
In summary, with the qualifications heretofore noted, it is our opinion that, if departures from the explicit provisions of the Act are to be initiated on equitable grounds, it is the prerogative of the judges of this court and not that of commissioners.
It should be noted that in In re Vasi (1989), 61 Ohio Misc.2d 327, 578 N.E.2d 915, a panel of commissioners (of which one of the present panel was a member) expressed a contrary view with respect to the exercise of equity powers by commissioners. In ruling that the thirty-day period prescribed by R.C. 2743.55(C) for filing objections to the decision of the single commissioner was discretionary and not mandatory, the panel stated that "the thirty-day provision of the statute should be waived * * * pursuant to the full equity powers of R.C. 2743.03(A)." (Emphasis added.) Id. at 328, 578 N.E.2d at 916. A majority of this panel, in the light of the conclusions heretofore expressed, considers the italicized language as, at best, surplusage, and ill-chosen. In Vasi, the panel was following the decision of Judge Ruzzo in In re Ross (June 4, 1984), Ct. of Cl. No. V83-51171jud, unreported, and his determination that the thirty-day provision was directory and not mandatory. Consequently, the waiver of the provision is discretionary with whatever tribunal has jurisdiction to entertain a motion to waive its strict application. Initially, the tribunal would obviously be the panel, to which the objections to the single commissioner's decision are initially addressed. The exercise of judicial, or quasi-judicial discretion, does not require the invocation of equity powers, although it may involve equity in a broad and lay sense, insofar as a decision to exercise discretion requires the application of precepts which serve the interests of justice and fundamental fairness.
Consequently, while the majority is in complete agreement with the holding of Vasi, it disavows, without qualification, the language to the effect that Court of Claims Commissioners are vested with any equity powers by R.C. Chapter 2743 in general and R.C. 2743.03(A) in particular.
Having abjured the exercise of equitable powers on the commissioner level, we are of the persuasion that this matter can be resolved by recourse to the most fundamental law of the state of Ohio, that is, the Ohio Constitution, particularly Sections 1 and 16 of Article I thereof.
In Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 28 OBR 346, 503 N.E.2d 717, the Ohio Supreme Court held that R.C. 2305.11(B) (the medical malpractice limitations statute) was unconstitutional as applied to infants. Applying Mominee, a majority of a panel of commissioners of this court held that R.C. 2743.56(C) and (by necessary inference) R.C. 2743.60(A) were similarly unconstitutional as applied to infants. In re Traylor, supra. Since we adopt the arguments and holding of Traylor in their entirety, we need not repeat them at this juncture.
Agreeing as we do with the decision in Traylor, which we believe correctly applied the constitutional principles so vigorously affirmed in Mominee, we hold that the same rationale is applicable to a mental incompetent as in the case at bar. In short, we find no reason to distinguish between the juridical rights of a sixteen-year-old minor (incompetent) and those of a twenty-six-year-old psychotic (incompetent) with the mental acuity of a juvenile of sixteen years or (more probably) less. While we have held that R.C. 2305.16 is inapplicable to the limitations provisions of the Act, we should note in passing that the result reached in the case at bar is consonant with the legislative rationale expressed in said section, inasmuch as infancy (incompetency) and mental (unsound mind) incompetency are treated on precisely the same basis.
It is noteworthy that, by a decision journalized on May 14, 1991, Judge Shoemaker of this court, speaking as the highest appellate authority within the Victims of Crime Division of the Court of Claims, for the first time, without qualification, held R.C. 2743.56(C)(1) unconstitutional as applied to minors, consonant with the previous holding of the Ohio Supreme Court in Mominee v. Scherbarth, supra, and a prior panel decision of this court in In re Traylor, supra. See In re Lay (May 14, 1991), Ct. of Cl. No. V89-83997jud, unreported.
Even more pertinent to the issue in the case at bar, Judge Shoemaker, while not purporting to apply R.C. 2305.16 as dispositive of the decision in Lay, mentioned said section peripherally as "in effect" controlling on the duration of the tolling period. This reference is significant, since R.C. 2305.16 also applies to persons of unsound mind and provides for a tolling period as applicable to such individuals.
Accordingly, the decision of the single commissioner is reversed and the cause is remanded for further processing of the claim in accordance with this opinion.
FINDINGS OF FACT
1. The criminally injurious conduct took place on August 18, 1985;
2. The applicant was mentally incompetent, from at least August 18, 1985 until at least September 15, 1989; and
3. The reparations application was filed on September 15, 1986.
CONCLUSIONS OF LAW
1. Because R.C. 2743.56(C) and 2743.60(A) were tolled by reason of the mental incompetency of the applicant as aforesaid, the application complies with the one-year filing requirement;
2. The applicant's economic loss is not determinable from the claim file; and
3. This claim shall be remanded to the single commissioner and referred back to the Attorney General for calculation of the applicant's economic loss.
Having considered the evidence and arguments presented before this panel and considering the findings of fact and conclusions of law included in the opinion rendered concurrently, said findings of fact and conclusions of law being incorporated by reference herein,
IT IS ORDERED THAT:
1. The August 14, 1987 order of the single commissioner, is REVERSED;
2. This claim is remanded to the single commissioner and referred to the Attorney General for calculation of the applicant's economic loss;
3. The new finding of fact and recommendation shall be filed on or before June 28, 1993;
4. The applicant is afforded an opportunity to respond to the new finding of fact and recommendation within twenty-one days after they are filed by the Attorney General;
5. The single commissioner shall determine the claim in a manner not inconsistent with this order and the opinion issued concurrently; and
6. Costs be assumed by the reparations fund.
It is so ordered.
So ordered.
WILLIAM A. CARROLL and KARL H. SCHNEIDER, Commissioners, concur.
SUSAN D. BROWN, Commissioner, concurs separately.
I concur in the result; however, I do not feel it is necessary to address the other issues, since the statute of limitations was tolled during the period of the claimant's incompetence, in reliance on the prior decisions of this court.