Opinion
No. V86-30965.
Decided June 23, 1989.
Charles A. Schneider, for the applicant.
Anthony J. Celebrezze, Jr., Attorney General, for the state.
On April 15, 1987, the single commissioner issued an opinion and order which denied the applicant's claim for an award of reparations. The denial was based upon the finding that the preponderance of the evidence showed the decedent, Arthur Shapiro, engaged in a conspiracy to defraud the United States and evade income tax in contravention of R.C. 2743.60(E). On May 12, 1987, the applicant, Joan Shapiro, timely filed an objection and notice of appeal from the April 15, 1987 determination. The applicant's objection was heard before this panel on September 23, 1987. Neither the applicant nor the Attorney General presented oral argument. The objection is now ready for a determination.
In her objection, the applicant argues that the claim for funeral expense should not be denied since the evidence relied upon by the Attorney General and the single commissioner is inadmissible. As a result, the applicant argued, the Attorney General cannot sustain his burden of proof with respect to R.C. 2743.60(E).
On September 8, 1987, the Attorney General filed his brief wherein he sought an affirmance of the single commissioner's denial of the claim for funeral expense because the panel is not bound to apply strict evidentiary principles in the consideration of a claim.
For the following reasons, the decision of the single commissioner is reversed.
R.C. 2743.60(E) states in full:
" 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." (Emphasis added.)
We note that the burden of proof regarding all the exclusionary criteria present in R.C. 2743.60 rests with the Attorney General, at least in the first instance. See 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.
Inasmuch as the decedent had no conviction record which would ipso facto preclude a reparations award under the emphasized portion of R.C. 2743.60(E) quoted supra, in order for us to affirm the single commissioner's decision, we must find that the preponderance of the evidence shows that the decedent engaged in a conspiracy to defraud the United States and evade income tax, both of which constitute felonies under federal law. See Section 371, Title 18, U.S.Code; Section 7201, Title 26, U.S.Code; and Section 7206, Title 26, U.S.Code. This "felonious conduct" on the part of the decedent would then serve to disqualify the applicant pursuant to R.C. 2743.60(E), as interpreted by the single commissioner and the Attorney General.
Preliminarily it should be noted that the portion of R.C. 2743.60(E) with which we are here concerned has been referred to by Judge Louis J. Schwartz writing for this court as relating to behavior rather than conviction. In In re Miskow (1988), 61 Ohio Misc.2d 229, 577 N.E.2d 154, Judge Schwartz compellingly observed as follows:
"This court's discussion of this issue is not an acceptance of the current version of R.C. 2743.60(E) as it relates to behavior rather than conviction; the legislature has placed this court in a difficult position in making such determinations due to the two burdens of proof involved." (Emphasis sic.) Id. at 232, 577 N.E.2d at 156.
It is further worthy of observation that this behavioral disqualification must theoretically be applied by the commissioner(s) and the court, notwithstanding an applicant has been acquitted of crime upon precisely the same facts presented in this court. Consequently, it would appear that if we are to impose the same disqualification or penalty (by reason of behavior) as we would in the case of a convicted felon/applicant, the quality of the proof — whether or not it conforms to the Rules of Evidence — should not consist of supposition, stacked inferences, innuendo, or unsupported charges or assertions, whether made by newspapers, law enforcement officers, or convicted felons in the course of plea bargaining.
The facts surrounding the criminally injurious conduct which is the subject of this claim are properly set out in the Attorney General's brief, at 3:
"On March 6, 1985, at approximately 9:30 a.m., the victim, Arthur Shapiro, was shot to death by an unidentified assailant on the doorstep of 3282 Brookview Way, which is in an apartment complex located off Old Dublin Road in Columbus, Ohio. The Wesley Chapel Cemetery, located directly across Old Dublin Road from the apartment complex, is where the incident began.
"Investigation has revealed that the victim had been sitting in his car with the gunman somewhere in the cemetery and had then run from him across Old Dublin Road to one of the houses nearby. The gunman ran after the victim and shot him on the doorstep as the victim was banging on the door seeking help.
"Nothing further is known about the identity of the gunman or his motive."
It is axiomatic that Court of Claims commissioners are not bound by strict rules of evidence. The single commissioner in arriving at his decision in this case relied upon the learned and exhaustive opinion of a judge of the court in In re Grow (1983), 7 Ohio Misc.2d 26, 7 OBR 175, 454 N.E.2d 618, which authoritatively construed in pari materia R.C. 2743.55(A), 2743.53(B), and 2743.61(A) relative to the admissibility "* * * of any information or data gathered (by law enforcement officers) in the investigation of * * * criminally injurious conduct * * *." Id. at 29, 7 OBR at 178, 454 N.E.2d at 621. Grow reinforces the now accepted proposition that neither the single commissioner (in deciding claims administratively, as permitted by statute (R.C. 2743.55[C]) nor a panel of commissioners (in ruling on objections to the decision of a single commissioner in a proceeding de novo) is bound by strict rules of evidence.
However, neither Grow nor any other decision of the court prescribes the weight to be afforded such "information or data" in any proceeding in this court. A single commissioner or a panel may, upon consideration, consider such data as (a) virtually conclusive, (b) prima facie persuasive, or (c) completely unreliable, depending on extrinsic and intrinsic factors then subject to scrutiny by the single commissioner or the panel.
In our judgment, the only evidence offered in this case which constitutes information or data is the investigative report of Revenue Agent Peter Szpalik referred to infra.
Therefore, it would appear that if a panel must try, or retry, a criminal case applying civil (or preponderance) standards, and where a decision adverse to the applicant results in the imposition of a penalty under R.C. 2743.60(E) precisely the same as that incurred by a convicted felon, at the very least, some observance of the rationale of the protections accorded under the Rules of Evidence is required.
The first items to be analyzed are the many newspaper articles found in the claim folder. It is difficult for us to perceive how any judicial or quasijudicial finding can properly be based on newspaper publicity. The record is replete with articles establishing no facts concerning Shapiro's alleged felonious conduct, merely allegations and suppositions. A quote from one article from The Columbus Dispatch (date not disclosed) is typical: "Arthur Shapiro had not filed an income tax return in about seven years, sources said."
The Franklin County Court of Appeals touched upon this issue in State, ex rel. Graves, v. State (1983), 9 Ohio App.3d 260, 262, 9 OBR 473, 475, 459 N.E.2d 913, 916, in the following statement:
"There are some questionable comments in the Court of Claims' decision affirming the commissioners' denial of the claim. We question whether judicial notice of barroom conditions can be taken because of some newspaper reports."
For these reasons, the newspaper articles are of no probative value in establishing the essential element at issue in this matter, i.e., the commission of a felony by the decedent.
Next, we will consider the federal court documents consisting of indictments, motion papers, and memoranda in connection therewith. In our opinion, none of these documents can be deemed evidentiary under any circumstances. The decedent is named as an unindicted co-conspirator in the indictment. Nevertheless, all of the above documents are either accusatory, argumentative, or governmentally self-serving. If these be considered evidence, in any sense, a conviction based upon a prosecutor's opening statement would be a matter of course. Therefore, these items also are essentially non-probative.
The third category of evidence proffered by the Attorney General includes the plea bargaining agreements of the offenders. These agreements are binding on, and relate only to, the conspirators concerned. Assuming that they constituted some species of testimony implicating the decedent as a conspirator, they would be inadmissible absent "independent evidence" of the conspiracy itself. United States v. Weaver (C.A.9, 1979), 594 F.2d 1272. The record, as we have it, is barren of any credible "evidence" in this regard, as previously and subsequently noted. Hence, the plea agreements are also incompetent from an evidentiary standpoint.
The fourth and final item to be discussed is the memorandum of activities authored by Revenue Agent Peter Szpalik, dated December 1, 1980. This memorandum, at best, is arguably admissible as a business record under Evid.R. 803(8). In any event it is worthy of notice as "information or data" gathered by law enforcement officers. However, aside from a recital of non-incriminating conversations with the decedent and others, it establishes only:
a. That an "IRP transcript showed partnership income received by Shapiro for 1977; yet, no return had been filed"; and
b. After numerous interviews between April and August 1980, the file was referred to the Internal Revenue Service Criminal Investigation Division on August 25, 1980.
Thus, assuming the memorandum to be evidentiary, the only legal transgression established was the failure to file the 1977 return which, under Sections 7201 through 7207, Title 26, U.S. Code, as then in effect, was a misdemeanor and not a felony.
For the record, we note the paucity of hard evidence in this case cannot be the subject of criticism of the Attorney General's office. Documentation in the file indicates the Attorney General's request for additional information was denied by the Assistant United States Attorney in view of the impending trials of the offenders. See Investigative Memorandum of the Attorney General dated June 26, 1986.
Finally, while we need not rule upon this issue to dispose of the claim now before us, we note in passing that In re Cowan (1986), 27 Ohio Misc.2d 12, 27 OBR 126, 499 N.E.2d 937, did not specifically rule upon the constitutionality of the second portion of R.C. 2743.60(E). Judge Brown's decision is clearly limited only to those cases in which the claimant/victim committed the disqualifying felony. See, e.g., id. at 19, 27 OBR at 134, 499 N.E.2d at 944.
In similar cases, recently journalized, a judge of this court and a panel of commissioners have held as a matter of statutory construction that the ten-year felony conviction disqualification is applicable in a death ( i.e., derivative) case to an applicant/claimant rather than to a victim/non-claimant. In re Gumpf (1989), 44 Ohio Misc.2d 8, 541 N.E.2d 501, and In re Barnes (Apr. 7, 1989), Ct. of Claims No. V86-46560tc, unreported. The reasoning in Gumpf and Barnes applies with equal logic to the "ten-year felony behavioral" disqualification. Thus, if the reasoning of Gumpf and Barnes is ultimately adopted on the appellate level (R.C. 2743.20), it is equally applicable to the case at bar, and constitutes an additional ground for reversing the decision of the single commissioner.
Therefore, the decision of the single commissioner is reversed and the matter is referred to the Attorney General for further investigation and a new recommendation. Pursuant thereto, we make the following findings of fact and conclusions of law.
Findings of Fact
1. On March 6, 1985, in Franklin County, Ohio, the decedent was killed by an unknown offender.
2. The assault was reported to a law enforcement officer or agency within seventy-two hours after the occurrence.
3. The preponderance of the evidence fails to show the decedent engaged in a conspiracy to defraud the United States and evade income tax.
Conclusions of Law
This claim is not barred by R.C. 2743.60(E) inasmuch as, assuming its applicability to the facts of this case, the Attorney General failed to sustain his burden of proof by a preponderance of the evidence that the victim was engaged in conduct that constituted a felony.
Order
Having considered the record before the commissioner below and 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,
IT IS ORDERED THAT:
1. The April 15, 1987 order of the single commissioner is reversed;
2. The claim is remanded to the single commissioner and referred to the Attorney General for a new finding of fact and recommendation to be filed not later than August 22, 1989;
3. The applicant is afforded an opportunity to respond to the new finding of fact and recommendation within twenty-one days after it is filed by the Attorney General;
4. The single commissioner shall determine this matter in a manner not inconsistent with this order;
5. Costs are to be assumed by the reparations fund.
So ordered.
WILLIAM A. CARROLL, DALE A. THOMPSON and KARL H. SCHNEIDER, Commissioners, concur.