Opinion
No. 80-1450
Decided July 22, 1981.
claim for damages authorized by legislative mandate — Hearing on merits required — Court of Claims — Unlawful incarceration — Res judicata not applicable.
1. A defendant has no common-law claim against the state for damages after he has obtained his release upon a writ of habeas corpus for violation of his constitutional rights.
2. Such judgment in habeas corpus is not res judicata upon the issue of whether the state is responsible for the unlawful incarceration in such a way as to warrant a discretionary payment to the defendant pursuant to a special statute enacted after his final release.
APPEAL from the Court of Appeals for Franklin County.
This civil case had its genesis in the Court of Common Pleas of Cuyahoga County upon the conviction, sentence, and subsequent six and one-half year incarceration of Frank L. Johns, appellee herein, for the crime of selling marijuana on November 30, 1964. After exhausting his state remedies, Johns filed an original action in habeas corpus in the federal District Court. He claimed that his privately-retained, personally-selected lawyer had afforded him inadequate representation of counsel in the sole particular of his claim of alibi.
The District Court dismissed the petition, finding adequate representation, in that such private counsel had telephoned Johns' place of employment and was assured that Johns' employment records were not conclusive either way on the question of whether Johns was at work at the time of the alleged crime. Thus, counsel had no essential duty to subpoena the records.
Upon appeal, the Sixth Circuit Court of Appeals reversed, declaring that it was the duty of private counsel to subpoena all the employment records because they might have created a reasonable doubt. Holding that the petitioner was deprived of his constitutional right to the effective assistance of counsel, the federal Court of Appeals remanded the case to the state courts "with instructions to grant the writ unless the time cards can be located to permit a fair re-trial." Johns v. Perini (C.A. 6, 1972), 462 F.2d 1308, at 1315. The federal Court of Appeals observed that "[t]he seriousness of the omission is emphasized by the fact that the employer routinely destroys time cards after five years." Id.
The Ohio authorities were unable to prosecute Johns and he was released.
Through counsel, Johns unsuccessfully attempted to persuade the General Assembly to enact a moral claim Bill, but ultimately was successful in the passage of Am. Sub. S.B. No. 221, which provides, in part, as follows:
"Section 41. Notwithstanding the provisions of Chapter 2743 of the Revised Code, Mr. Frank Johns, 12705 Craven Avenue, Cleveland, Ohio, 44105, is hereby authorized to file a claim for damages in the Court of Claims for unlawful incarceration and for lost wages, legal expenses and general damages resulting from his alleged unlawful incarceration. The Court of Claims, after all the evidence in support of this claim has been heard, shall determine: 1) whether the preponderance of the evidence offered supports a finding that Mr. Johns has been unlawfully incarcerated by the State of Ohio, and if this is so, 2) the dollar amount of damages to be awarded as compensation. Funds shall be available from the balance in the reparations Rotary Fund to pay any award for damages made to Mr. Johns by the Court of Claims. Such claim for damages must be filed prior to July 1, 1979, after which date the authority to file such claim shall expire."
Johns filed a complaint in the Court of Claims subsequent to the enactment of this Bill, and the Court of Claims entered a summary judgment against him. This judgment was reversed by the Court of Appeals for Franklin County, which observed:
"Whether the decision of the Sixth Circuit Court of Appeals in effect held the judgment of conviction void or voidable, or whether such judgment is res judicata for purposes of the issues raised herein, will not be discussed at this time in that it is not necessary to do so. The Court of Claims, and this court, must consider the rights of this particular claimant in light of the special legislation enacted which creates his cause of action.
"The legislation dealt with here is very clear as to the duty of the Court of Claims. The court must, according to the wording of the bill, first hear all of the evidence in support of the claim, and it then must determine `whether the preponderance of the evidence offered supports a finding that Mr. Johns had been unlawfully incarcerated by the State of Ohio.'
"Further, if the court so finds upon all of the evidence adduced that Mr. Johns was unlawfully incarcerated, then the court must determine dollar amount damages to be awarded as compensation. Here, the Court of Claims decided this cause upon summary judgment, and did not permit plaintiff to submit any evidence upon the issue of unlawful incarceration. How then can it be said that the legislative mandate to hear all of the evidence and determine by the preponderance of the evidence whether Mr. Johns had been unlawfully incarcerated has been carried out? We must hold that the reasonable intent of the legislative enactment was for the Court of Claims to entertain and review the evidence on the issue of the unlawful incarceration, and to make its determination as to whether justice had been done in the trial of the cause of Mr. Johns. ***"
Upon rehearing in the Court of Claims, counsel for Johns did not adduce evidence as to whether Johns had been unlawfully incarcerated by the state of Ohio, and objected to all evidence except that which went to the issue of damages. This time the Court of Claims entered judgment in favor of the state of Ohio because it had no evidence to review on the first issue in the legislative mandate. Johns through counsel had claimed that the judgment in habeas corpus entered by the federal Court of Appeals was res judicata upon that issue.
Upon appeal of this second Court of Claims' judgment, the Court of Appeals, composed of a different panel, departed from "the law of the case" which it had spelled out in the first review, and based its judgment on the sole proposition that the federal Court of Appeals judgment in habeas corpus was res judicata upon the issue of "unlawful incarceration by the State of Ohio." This time the Court of Appeals reversed and remanded the case with instructions to the Court of Claims to hear only evidence as to Johns' damages.
See Bane v. Wick (1856), 6 Ohio St. 13; and the cases collected in 5 Ohio Jurisprudence 3d 307, Appellate Review, Section 648; 5 American Jurisprudence 2d, Appeal and Error, Sections 744-759.
This cause is now before this court upon the allowance of a motion to certify the record.
Mr. Edwin F. Woodle, for appellee.
Mr. William J. Brown, attorney general, and Mr. Warren M. Enders, for appellant.
A defendant has no common-law claim against the state for damages after he has obtained his release upon a writ of habeas corpus for violation of his constitutional rights. See Tymcio v. State (1977), 52 Ohio App.2d 298.
Cuyler v. Sullivan (1980), 446 U.S. 335, recently held that the right of the accused to adequate representation of counsel includes the counsel which he personally selects and privately retains. However, this does not give him a right of civil action against the state government based solely upon the alleged shortcomings of such counsel.
In the case sub judice, the General Assembly did not attempt to vote Johns an unconditional grant of a specific sum as a "moral claim" or upon any other basis. Whether it could have done so in such a case is not before us and we make no decision thereon.
The General Assembly, aware of Johns v. Perini, supra, and its conditional nature, limited its grant of access to the public treasury to the prior condition that the Court of Claims hear the evidence de novo upon whether justice had been done in Johns' state trial. The argument that Johns v. Perini, supra, is res judicata misses the mark completely. The point is that the decision in Johns v. Perini, supra, does not make the state liable nor does it obligate the General Assembly or limit it in the options it has available to impose as a precondition of its discretionary opening of the public treasury. The General Assembly understands that evidentiary restrictions coupled with the heavy burden of proof upon the state frequently lead to final releases from imprisonment irrespective of actual innocence of the accused or objectionable conduct on the part of the government.
There is no "presumption" that a released prisoner is entitled to a key to the public treasury. The General Assembly intended to defer to the Court of Claims on the separate question of whether the state of Ohio was responsible for Johns' incarceration in such a way as to warrant any discretionary payment of tax dollars to him. Upon that question no prior judicial decision could be res judicata. That issue could not have been ligated in Johns v. Perini, supra.
In its opinion in the first appeal, the Court of Appeals for Franklin County correctly captured and clearly restated that unequivocal legislative purpose. In the second appeal of this cause, that court, comprised of a different panel, erroneously departed from "the law of the case" it had previously correctly declared.
The Court of Claims correctly followed the mandate of the Court of Appeals when, upon retrial, it entered a judgment in favor of the state upon the plaintiff having failed to adduce any evidence on the first issue in the legislative mandate.
Accordingly, the judgment of the Court of Appeals for Franklin County is reversed.
Judgment reversed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.
C. BROWN, J., dissents.
PUTMAN, J., of the Fifth Appellate District, sitting for Holmes, J.
The issue of the unlawful incarceration of Frank Johns was determined against the state of Ohio in the habeas corpus action in the United States Court of Appeals in Johns v. Perini (C.A. 6, 1972), 462 F.2d 1308. To contend that Johns v. Perini, supra, is not res judicata misses the mark. The Court of Appeals for Franklin County hit the bull's eye by concluding that the determination of unlawful incarceration in the habeas corpus action in the federal court constituted proof by a preponderance of the evidence that Johns was unlawfully incarcerated by the state of Ohio, and that the trial court failed to follow the mandate of the Ohio General Assembly in concluding that Johns had no claim for relief.
To hold otherwise than the Court of Appeals below is to disregard the recent pronouncement of this court in Trautwein v. Sorgenfrei (1979), 58 Ohio St.2d 493, which held that a point of law which was actually and directly at issue in a former action between the same parties may not be relitigated but is binding in a subsequent action. See, also Hicks v. De La Cruz (1977), 52 Ohio St.2d 71; Columbus v. Union Cemetery (1976), 45 Ohio St.2d 47.
It is immaterial that the issue determined in the prior action between the same parties to the action was made by the United States Court of Appeals rather than by a state court where the present action is being determined. Symons v. Eichelberger (1924), 110 Ohio St. 224; Horne v. Woolever (1959), 170 Ohio St. 178, paragraph six of the syllabus.
The grant of the extraordinary writ of habeas corpus is for the purpose of conclusively determining the illegality of the restraint or custody under which a prisoner is held, i.e., unlawful incarceration. This grant of habeas corpus relief authorized release from confinement. It was a successful collateral attack nullifying the original judgment and sentence. Bar Assn. v. Steele (1981), 65 Ohio St.2d 1; In re Lockhart (1952), 157 Ohio St. 192; State v. Dean (1958), 107 Ohio App. 219, 225-226; 49 Corpus Juris Secundum 792, 809. See, generally, Fay v. Noia (1962), 372 U.S. 391.
Cuyler v. Sullivan (1980), 446 U.S. 335, and Tymico v. State (1977), 52 Ohio App.2d 298, are no aid in determining the issue we must decide here.
Cuyler v. Sullivan, supra, holds, at page 343:
"[A] state criminal trial, a proceeding initiated and conducted by the State itself, is an action of the State within the meaning of the Fourteenth Amendment. *** Unless a defendant charged with a serious offense has counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice, a serious risk of injustice infects the trial itself. *** When a State obtains a criminal conviction through such a trial, it is the State that unconstitutionally deprives the defendant of his liberty. ***" (Emphasis added.)
The above language, by holding that inadequate legal assistance guaranteed by the Sixth Amendment constitutes unconstitutional deprivation of defendant's liberty, is the equivalent of holding that such ineffective legal assistance resulting in confinement is unlawful incarceration. The rationale of Cuyler supports the contention of appellee Johns.