Opinion
No. 77-113
Decided December 14, 1977.
Court of Claims — Victims of crimes fund — How funded — Additional court costs imposed — R.C. 2743.70 — Constitutionality — Mandamus.
IN MANDAMUS.
This is an original action in which the Attorney General seeks to have this court order respondent Judge Harold H. Galbraith to enforce R.C. 2743.70. The cause is before this court upon an agreed statement of facts.
Relator alleges that respondent, as the Judge of the Vandalia Municipal Court, has a mandatory legal duty under R.C. 2743.70 to impose the sum of three dollars as costs (in addition to any other court costs he is required by law to impose) in all cases in which a person is convicted of or pleads guilty to any offense other than a traffic offense that is not a moving violation, but that respondent has refused to do so.
Relator also alleges that respondent Patricia Dresser, as the Clerk of the Vandalia Municipal Court, has a mandatory legal duty under R.C. 2743.70 to transmit these same costs to the Treasurer of State, but that she has refused to do so.
On September 29, 1976, Judge Galbraith declared R.C. 2743.70 to be unconstitutional in State of Ohio v. Marc F. Grilliott (unreported, case No. 27559A). The court's "entry" shows that case to have been a routine traffic offense, in which the court sustained an oral defense motion not to impose the three dollars in court costs for the reason that H.B. No. 82 (the Victims of Crime Act, effective September 29, 1976, which includes R.C. 2743.70) was unconstitutional, without specifying the reasons for such decision.
The parties agree that notice of the court's ruling in Grilliott was given to the Vandalia City Attorney, who did not appeal, but that relator and his staff did not have knowledge of the court's decision.
Since declaring R.C. 2743.70 to be unconstitutional, Judge Galbraith has not imposed the three dollars in court costs in any other case, and, consequently, respondent clerk has been unable to transmit these costs to the Treasurer of State.
Mr. William J. Brown, attorney general, and Mr. Gene W. Holliker, for relator.
Cumming, Bannister, Izenson Kinney Co. L.P.A. and Mr. Fred M. Izenson, for respondents.
R.C. 2743.70 provides, in pertinent part, that:
"The court, in which any person is convicted of or pleads guilty to any offense other than a traffic offense that is not a moving violation shall impose the sum of three dollars as costs in the case in addition to any other court costs that the court is required by law to impose upon the offender. All such moneys shall be transmitted on the first business day of each month by the clerk of the court to the treasurer of state and deposited by the treasurer in the reparations rotary fund."
This court finds apposite to the present cause the reasoning of the Supreme Court of Florida in State v. Young (1970), 238 So.2d 589, in which that court upheld a statute imposing a one dollar court cost against each person convicted of a crime (other than non-moving traffic violations) or guilty of a bond forfeiture. This court cost was to go to the general revenue fund of the state. The court stated, at page 590:
"It is not unreasonable that one who stands convicted of such an offense should be made to share in the improvement of the agencies that society has had to employ in defense against the very acts for which he has been convicted." Likewise, in the instant cause, it is not unreasonable that one who stands convicted of an offense should be made to share in the cost to society of criminal activity.
This court determines that R.C. 2743.70 is constitutional and, therefore, a writ of mandamus shall issue directing respondents to enforce and observe the statute's provisions.
Writ allowed.
O'NEILL, C.J., CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.
I do not agree that respondent has a clear legal duty to follow a statute which has been declared unconstitutional in an unreversed final order issued by a duly constituted court of law.