Opinion
Nos. V85-62723 and V85-66516.
Decided March 25, 1988.
Frederic R. Kass and Dory A. Sutker, for applicants.
Anthony J. Celebrezze, Jr., Attorney General, for the state.
This claim came before the panel on the May 22, 1987 objection and notice of appeal of applicant Sarah A. Martin to the April 22, 1987 decision of the single commissioner. The single commissioner granted applicant Sarah A. Martin's claim for unreimbursed funeral expenses in the amount of $1,250, and denied the claim for dependent's economic loss or dependent's replacement services loss made on behalf of herself, Pamela Martin, Pauline Martin and Phyllis Pearson. The single commissioner also denied applicant Barbara C. Martin's claim for dependent's economic loss made on behalf of herself, Lamont E. Martin and Shronda Finch. Finally, the single commissioner found the claim was not barred by either R.C. 2743.60(E) or 2743.60(F).
Applicant Sarah A. Martin's objection and notice of appeal was heard before this panel on September 23, 1987 and is now ready for a determination.
At the hearing, applicant's counsel argued that Martin had incurred dependent's replacement services loss as a result of the victim's death. Additionally, the Attorney General should not be permitted to raise the issues of felonious conduct and contributory misconduct at the appellate level because the Attorney General failed to perfect a proper appeal of these issues.
In response, the Attorney General raised several arguments. First, the Attorney General contended that a panel hearing with witness testimony is tantamount to a trial de novo, thereby leaving all issues open for further development. Second, the decedent's 1985 arrest for possession of criminal tools should be sufficient to deny this claim pursuant to R.C. 2743.60(E). Finally, the decedent's 1969 conviction for breaking and entering, combined with his conduct on the day of his death, constitutes contributory misconduct sufficient to bar an award of reparations under R.C. 2743.60(F).
We hold that the single commissioner erred in allowing applicant Sarah A. Martin's claim for unreimbursed funerals expenses. We will take each of the arguments presented in turn.
The procedural scope of a three-commissioner panel hearing is the threshold issue of this appeal. While R.C. 2743.55(C) outlines the procedure for appealing a single commissioner decision, R.C. 2743.55(A) provides that "[a] single commissioner or a panel of court of claims commissioners shall hear and determine all matters relating to claims for an award of reparations. * * *" (Emphasis added.)
We agree with the Attorney General that a panel hearing, especially one wherein witnesses are called, strongly resembles a trial de novo. Therefore, in our effort to "determine all matters," we find all issues raised in the hearing to be properly before us regardless of the identity of the appellant.
Next, we turn to the Attorney General's contention regarding R.C. 2743.60(E) and the decedent's 1985 indictment for possession of criminal tools. Upon careful review of the file, we agree with the single commissioner there is insufficient evidence to find, by a preponderance, that the decedent would have been found guilty of a felony beyond a reasonable doubt. Thus, the single commissioner shall be affirmed as to his ruling concerning R.C. 2743.60(E).
We are left with the question of the decedent's alleged contributory misconduct. R.C. 2743.60(F) provides:
"In determining whether to make an award of reparations pursuant to this section, a single commissioner or panel of commissioners shall consider whether there was contributory misconduct by the victim or the claimant. A single commissioner or a panel of commissioners shall deny a claim for an award of reparations if it is determined that there was contributory misconduct by the claimant or the victim.
"If the attorney general recommends that a claim be denied because of an allegation of contributory misconduct that is supported by his finding of fact in division (C)(7) of section 2743.59 of the Revised Code, the burden of proof on the issue of that alleged contributory misconduct shall be upon the claimant, if either of the following apply:
"(1) The victim was convicted of a felony more than ten years prior to the criminally injurious conduct that is the subject of the claim or has a record of felony arrests under the laws of this state, another state, or the United States;
"(2) There is good cause to believe that the victim engaged in an ongoing course of criminal conduct within five years or less of the criminally injurious conduct that is the subject of the claim."
The definition of "contributory misconduct" is found in R.C. 2743.51(M), which states:
"`Contributory misconduct' means any conduct of the claimant or of the victim through whom the claimant claims an award of reparations that is unlawful or intentionally tortious and that, without regard to the conduct's proximity in time or space to the criminally injurious conduct, has a causal relationship to the criminally injurious conduct that is the basis of the claim."
The single commissioner correctly found that, in the first instance, the burden of proof regarding contributory misconduct rests with the Attorney General. In re Williams (Mar. 26, 1979), Ct. of Claims No. V77-0739jud, unreported; and In re Brown (Dec. 13, 1979), Ct. of Claims No. V78-3638jud, unreported. However, the single commissioner failed to note that the decedent was convicted in 1969 of breaking and entering in the daytime under former R.C. 2907.15, as then in effect. This conviction apparently constituted a felony, thereby causing a shift in the burden of proof to the applicant pursuant to R.C. 2743.60(F)(1). Because we have sufficient proof of contributory misconduct in the statements of the offender, the evidence of physical injury to the offender found in the Attorney General's trial exhibit "A", and the overall results of the police investigation, the burden must shift to the applicant to prove a lack of contributory misconduct on the part of the decedent.
Because the applicant has not been given an opportunity to present evidence in order to meet this burden, a final decision on the claim will be held in abeyance pending the applicant's filing with the court and the Attorney General such documentation supportive of the allegations as the applicant may deem appropriate. The documentation shall be filed in accordance with the terms of the order entered concurrently.
Therefore, the decision of the single commissioner shall be set aside. The panel adopts and incorporates by reference findings of fact numbered one through eight, and twelve, and conclusions of law numbered one through four, and six, set forth in the single commissioner's opinion of April 22, 1987. In addition, we make the following finding and conclusions.
Finding of Fact
Evidence in the claim file establishes the decedent assaulted Paula Smith prior to his death.
Conclusions of Law
1. The Attorney General has proven, by a preponderance of the evidence, that the decedent's conduct constituted contributory misconduct within the meaning of R.C. 2743.51(M).
2. Due to the shift in the burden of proof, pursuant to R.C. 2743.60(F)(1), a final decision in this claim will be held in abeyance and an order in conformity with this opinion will be entered.
Accordingly, the decision of the single commissioner shall be set aside.
Order
Having considered the information in the claim file, the evidence and arguments presented at the hearing before this panel, and the findings of fact and conclusions of law as set forth in the opinion issued concurrently, said findings of fact and conclusions of law being incorporated by reference herein, it is ordered that:
1. The April 22, 1987 order of the single commissioner is set aside.
2. This claim is not yet ready for a final determination.
3. On or before April 25, 1988, the applicant is to file with this court and with the Attorney General such documentation supportive of the allegations as the applicant may deem advisable.
4. On or before May 24, 1988, the Attorney General shall file a finding of fact and recommendation.
5. Costs are to be assumed by the reparations fund.
Reporter's Note: On November 9, 1988, the three-commissioner panel found contributory misconduct existed; that decision was affirmed by the Court on March 22, 1989.
DALE A. THOMPSON, WILLIAM A. CARROLL and KARL H. SCHNEIDER, concur.