Opinion
No. V87-80010.
Decided May 8, 1989.
Ellen Rittgers, pro se.
Anthony J. Celebrezze, Jr., Attorney General, for the state.
The captioned matter is before us upon an appeal from a decision of the single commissioner, the application having been denied pursuant to the then-effective R.C. 2743.56(C), which stated, in part, as follows:
"(1) If the victim of the criminally injurious conduct was a minor, within one year from the date a complaint, indictment, or information is filed against the alleged offender. This division does not require that a complaint, indictment, or information be filed against an alleged offender in order for an application for an award of reparations be filed pertaining to a victim who was a minor, and does not affect the provisions of section 2743.64 of the Revised Code.
"(2) If the victim of the criminally injurious conduct was an adult, within one year after the occurrence of the criminally injurious conduct."
The facts in this case, as revealed by an examination of the file, may be summarized as follows:
1. The applicant in this case is an infant of approximately one and one-half years who was approximately five months old at the time of the death of his mother, Dawn Annette Traylor, the putative victim in the matter sub judice. Since the single commissioner based his decision below solely upon the application of the limitations period of R.C. 2743.56(C), there has, as yet, been no definitive determination at any level of this court to the effect that the applicant's mother qualifies as a "victim" as defined by R.C. 2743.51(L).
2. The criminally injurious conduct resulting in the death of the applicant's mother occurred on or about July 14, 1986. Criminally injurious conduct is conclusively presumed by operation of R.C. 2743.64.
3. A complaint was filed against the offender on or about July 15, 1986.
4. Thereafter, a custody litigation ensued between the maternal grandmother and the natural father for the custody and/or guardianship of the infant applicant. In the course of these proceedings, Ellen B. Rittgers, who is prosecuting the matter in this court on behalf of the infant applicant, was notified by the probate/juvenile judge of the Warren County Common Pleas Court that she had been appointed as guardian ad litem for the infant applicant in connection with the custodial/guardianship proceedings in the case pending in that court.
5. As evidenced by the affidavit of Judge John B. Tracy, the appointment authority, Rittgers accepted her appointment as guardian ad litem on September 3, 1986 as apparently evidenced by entry in the records of that court, journalized September 16, 1986.
6. On October 7, 1986, again as stated in the affidavit of Judge Tracy, Rittgers appeared in court and "was asked" to file an application on behalf of the infant applicant in this court. This request/authorization/order is evidenced by a "memorandum" of that date, dated October 7, 1986.
7. Rittgers filed the application sub judice — as reflected by the records of this court — on September 8, 1987. There is suggestion in the record that this application was first filed with the clerk of the Common Pleas Court of Warren County prior thereto on September 2, 1987 as authorized by R.C. 2743.56(A). For reasons, stated, infra, the filing date whether it be September 2, or September 8, is not, in our opinion, legally significant.
As noted by the Attorney General and by the single commissioner, the reparations application was not filed within one year of the occurrence of the criminally injurious conduct as provided for adults pursuant to R.C. 2743.56(C)(2); nor was it filed within one year from the date a "complaint" was filed against the alleged defendant, an apparent extension or "tolling" of the limitations period for infants provided by R.C. 2743.56(C)(1). The sole question presented to this panel is the effect of the appointment of the guardian ad litem vis-a-vis the operation of the underlying statute of limitations and/or repose as applicable to infants under R.C. 2743.56(C)(1).
The general limitations period imposed by the Crime Victims Reparations Act (the "Act") historically was deemed to be mandatory and jurisdictional; an inflexible rule which neither permitted departure nor brooked exception. The cases, affirming this proposition, were virtually legion until the decision by a judge of this court in In re Irwin (1987), 33 Ohio Misc.2d 37, 515 N.E.2d 38, wherein the actual occurrence of the criminally injurious conduct was not even discovered until shortly before the expiration of the limitations period prescribed by R.C. 2743.56(C). A judge of this court, in Irwin, applied what he referred to as "equitable logic." Thereafter in briefs and in oral argument, the Attorney General has referred to the Irwin case as the one "exception" to the rule that the one-year period of limitation was inflexible by reason of its being "mandatory and jurisdictional." It would appear to us that, if indeed the one-year statutory limitation was "mandatory" and/or "jurisdictional," it would, as a matter of recognized legal definition, permit of no exception. Regardless of Aristolelian distinctions which might be drawn, it is apparent that the one-year statute of limitations is no longer engraved in stone. If, indeed, it were ever inscribed on the tablets brought down from Mt. Sinai, it has since been defaced. In practical effect and in the interest of justice and equity, in our judgment, the judge of this court recognized a discovery principle as triggering the running of the statute of limitations, a principle which has been engrafted upon statutory law by the Supreme Court of Ohio in Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438, and thereafter consistently applied in analogous cases, Deskins v. Young (1986), 26 Ohio St.3d 8, 26 OBR 7, 496 N.E.2d 897; Hershberger v. Akron City Hospital (1987), 34 Ohio St.3d 1, 516 N.E.2d 204; Skidmore Hall v. Rottman (1983), 5 Ohio St.3d 210, 5 OBR 453, 450 N.E.2d 684.
The "mandatory and jurisdictional" concept was further eroded by a decision of a judge of this court in In re Staab (Jan. 30, 1986), Ct. of Claims No. V84-50248jud, unreported. The judge of this court in an opinion which did not refer to Irwin, supra, but which nevertheless sounded of the logical equity or equitable logic arguments of Irwin, permitted the filing of an application virtually two years after the occurrence of the criminally injurious conduct and approximately eight months after the death of the victim who had been in a coma from the date of the criminally injurious conduct to the date of her death. The application was filed on behalf of her estate presumably by an executor/administrator. The judge in that case described the "jurisdictional" argument as a "product of judicial interpretation * * * which may be open to revision, especially in light of the legislative intent behind the Victims Act in general, and the one-year statute of limitations in particular." In other words, and in our view, the judges of this court in Irwin and Staab were debunking the concept that the one-year limitation period was jurisdictional. What they appeared to be saying was that the one-year limitation period was qualifiedly mandatory, subject to ad hoc determinations based on sound equitable principles. The demise of the "mandatory and jurisdictional" interpretation of the limitations period of R.C. 2743.56(C) was effectuated by the following expression in Staab, as follows:
"The necessity for some sort of statutory cutoff point for the time to file claims cannot be disputed but, the reasoning behind treating that cutoff date as jurisdictional and inflexible can."
Inasmuch as we are bound by the pronouncements of judges of the Court of Claims as the highest judicial authority within the framework of the Act, it would appear that we are now permitted, if not required, to no longer regard the limitations periods as "jurisdictional" or "mandatory." The necessary implication of the holding in the Irwin and the Staab cases would appear to dictate that an application by a fiduciary, be he or she appointed in a testamentary capacity or inter vivos as a general guardian or as a guardian ad litem, initiates, from the date of appointment and qualification, a new limitations period as it may be defined in the applicable statute (one year in this case). To hold that a fiduciary who is appointed one day before the expiration of a limitations statute is barred unless he files an application within twenty-four hours and at the same time preserve to a fiduciary appointed twenty-four hours after the expiration of a statute, the full statutory limitations period, results in a logical and legal absurdity. Furthermore, this panel is not sure that as of this date there has ever been a legally effective appointment of a guardian ad litem for the purpose of prosecuting an application in this court so as to initiate the running of the statute of limitations even under a restrictive application of the principles enunciated in Staab.
Presumably, the appointment of Rittgers had its genesis in a journal entry, dated September 16, 1986, confirming Rittgers' court appearance on September 3, 1986 when (apparently orally) she accepted the responsibility as guardian ad litem for the infant applicant for the sole purposes of the custodial/guardianship proceeding in the Warren County Juvenile/Probate Court. In our judgment, the official capacity of Rittgers was effected only by the journal entry of September 16, 1986, as aforesaid and had application only to proceedings then being prosecuted in that court.
Subsequently, as previously noted, by "memorandum" dated October 7, 1986, Rittgers was directed to make appropriate filings in this court on behalf of her ward. According to the affidavit of Judge Tracy, dated November 12, 1987, and particularly in paragraph six thereof, the memorandum of October 7, 1986 constituted a request to file an application for Victims of Crime Funds "if appropriate." The memorandum decision of Judge Tracy coupled with the affidavit aforesaid convinces this panel that Judge Tracy recognized the jurisdictional limitations imposed on him and his court in terms of appointing a guardian ad litem in a matter not then pending in his court, a jurisdictional limitation which is apparent from a reading of R.C. 2111.23. Judge Tracy's memorandum "request" therefore manifested an understandable and laudable concern for the welfare of an infant who was, at that point, more a ward of his court than of anyone else, with the objective of obtaining maximum justice for that ward. Therefore, Rittgers' apparent appointment as guardian ad litem to prosecute a reparations award in this court was without legal effect; her appointment in that particular regard was null and void inasmuch as the appointing authority lacked the jurisdiction to effect any such legal appointment or direct any such prosecution in the Ohio Court of Claims.
If we adopt the foregoing theory, since there has as yet been no legally appointed guardian (ad litem or general), the infant applicant is in no different posture than the applicants in Staab or in Irwin, even if we were to adhere to the legally absurd principle that a fiduciary appointed one minute before the expiration of the statute of limitations who does not file his application within sixty seconds is out of court and the fiduciary appointed one minute after the expiration of the applicable statute of limitations has the full statutory limitations period in which to file an application.
However, in our judgment, it is not necessary to rely upon such nice and technical distinctions in this case. It is our apprehension that in interpreting the Act, we are bound first by the statutory provisions thereof and, barring any such applicable statutory provisions, we are bound by general principles of law as enunciated by the civil courts, including the Ohio Courts of Appeals, and the Ohio Supreme Court insofar as those provisions are obviously applicable to matters which may come before us. Irwin, and particularly Staab, appeared to assume that the appointment of a fiduciary, be it executor, administrator, trustee, general guardian, or guardian ad litem, in some way affects the running of the statute of limitations in some cases, or, possibly affects the tolling of the statute of limitations in others. Having in mind that judges of the Court of Claims in reviewing decisions of a panel of commissioners are not necessarily bound by the previous decisions of judges of the Court of Claims any more than a panel of commissioners is bound by decisions of other panels, it might well be that a reviewing judge would not be inclined to apply the principles set forth in Irwin and Staab to the facts in this case. In such event, it is deemed advisable to set forth an even more compelling argument for reversing the decision of the single commissioner in the matter sub judice.
The decision in Staab in attaching significance to the appointment of a legal guardian for an infant/incompetent, as triggering a new period of limitations, may well be against whatever — admittedly sparse — legal authority obtains in Ohio. It would appear that the appointment of a legal guardian for an incompetent, generally has no effect upon the running of a statute of limitations, or upon the tolling thereof, during the period of incompetency. That is to say:
1. The tolling of the statute of limitations during incompetency is not interrupted by the appointment of a fiduciary so as to reconstitute a new limitations period applicable to a competent person — the tolling, therefore, continues during the period of incompetency; conversely, it would appear to follow that —
2. The expiration of a tolling period is likewise not effected by the appointment of a fiduciary and the rights of the incompetent are extinguished upon the expiration of the underlying tolling period.
Thus, in 66 Ohio Jurisprudence 3d (1986) 268, Limitations and Laches, Section 121, the following statement appears in pertinent part:
"It is held in most jurisdictions where the legal title or right of an action is in an infant the statute of limitations does not run against him during his minority, although a general guardian has been appointed and suit may be instituted by him within the statutory period after achieving his majority." (Citing In re Estate of Gress [P.C. 1944], 13 Ohio Supp. 70, 28 O.O. 268, 40 Ohio Law Abs. 172.)
Applying this proposition literally to the case at bar, it would appear that the appointment of the guardian ad litem was, therefore, immaterial and the underlying limitations period of R.C. 2743.56(C) (tolled in the case of infants only by the additional period between the date of the criminally injurious conduct and the filing of a complaint or indictment, etc.) would necessarily apply. Consequently, the infant applicant would be out of court. However, in so holding, we would be ignoring and failing to consider the impact of Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 28 OBR 346, 503 N.E.2d 717, upon the constitutionality of R.C. 2743.56(C) as it applies to infant applicants. In Mominee, the Ohio Supreme Court, in considering the statute of limitations for medical malpractice actions as applied to infants, held in the syllabus that "R.C. 2305.11(B) is unconstitutional as applied to minors under the due course of law provisions of the Ohio Constitution. ( Baird v. Loeffler, 69 Ohio St.2d 533 [23 O.O.3d 458, 433 N.E.2d 194], to the extent inconsistent herewith, overruled.)"
In considering the applicability of Mominee to the case at bar, some striking similarities are apparent. The medical malpractice statute, R.C. 2305.11(B), afforded a minimum tolling provision to certain infants under ten years old, analogous to the minimal tolling provision of the limitations statute sub judice, of the additional period between the commission of the criminally injurious conduct and the filing of a complaint or indictment. In holding the limitations period, however tolled, to be unconstitutional as against infants, the Ohio Supreme Court in Mominee, stated in 28 Ohio St.3d at 275, 28 OBR at 350-351, 503 N.E.2d at 721, in pertinent part as follows:
"* * * It is beyond dispute that a minor has no standing to sue before he or she reaches the age of majority. Civ.R. 17(B). However, given the abrogation of the `disabilities' tolling statute in R.C. 2305.11(B), minors may, as in the cause sub judice, lose their rights to redress before they reach eighteen years of age. Thus, the sum and substance of R.C. 2305.11(B) is that a minor shall have no standing to sue before attaining the age of majority, and no right to bring suit thereafter. Such, in our view, is totally unreasonable and patently arbitrary."
The only possible reason, as we see it, for failing to recognize the same constitutional infirmities in R.C. 2743.56(C) as recognized by the Ohio Supreme Court in Mominee and applied to the malpractice statute, is the often-repeated expression that the Crime Victims Reparations Act is a form of legislative "gift" and not a constitutionally protected right. This, in our opinion, deserves comment and consideration.
The concept of Crime Victims Reparations as a "gift" had its genesis in some of the earliest Court of Claims judges' decisions repeated through the years, and was relied upon as a supplemental persuasive argument in the landmark constitutional decision of the court in In re Cowan (1986), 27 Ohio Misc.2d 12, 27 OBR 126, 499 N.E.2d 937. There is no question — at this juncture, at least — that the Act may be considered a gift in the sense that the state, acting through the legislature, has voluntarily relinquished its sovereign right of immunity from suit. However, having vouchsafed this "gift," the legislature created new rights of action and recovery in persons qualified under the terms of the Act. These rights would appear to be as fixed and inflexible as any consummated "gift" until and unless they are altered, amended, or revoked by the giver ( i.e., the legislature itself). Having embarked on the course of creating these rights by legislative enactment, it would appear that the legislature has brought into play the entire range of statutory considerations including the implicit incorporation in such enactments of the most superior statute applicable insofar as the state of Ohio is concerned, i.e., the Ohio Constitution. The principle of weighing the applicability and possible conflict of two enactments, one legislative and the other constitutional, having their geneses in the same (state) sovereignty, is as fundamental as a revisitation of Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137, 2 L.Ed. 60. Thus, assuming the validity of the "gift" concept, we would not presume to apply federal constitutional principles but only state constitutional principles to the case at bar. We would be inclined to confine this consideration solely within the legal framework of the Ohio Constitution and legislative enactments promulgated pursuant thereto. Parenthetically, it may be noted that the "gift" concept, defensible as it may be, is conceptually less applicable to the Crime Victims Reparations Fund than it may be to the civil or "other" side of this court created pursuant to R.C. 2743.03. In the case of the Crime Victims Reparations Fund, the implementation of the program plus the source of the largesse is not derived from any levy or imposition upon the sovereignty in the person of the general taxpayer. These funds are derived solely from the imposition of additional court costs in criminal cases upon that class of individuals who might be deemed to be collectively, if not individually, liable for damages to the victims in the first instance as a sort of restitutive (if not retributive) measure.
Accordingly, we reverse the decision of the single commissioner either upon the principles set forth in Irwin and Staab, supra, or in the alternative upon the ground that section R.C. 2743.56(C) is unconstitutional as applied to infants under the age of eighteen years. Mominee v. Scherbarth, supra.
Order
For the reasons stated in the opinion issued concurrently herewith, it is ordered that:
1. The March 17, 1988 order of the single commissioner is REVERSED;
2. The claim is remanded to the single commissioner and referred back to the Attorney General for a complete investigation and a new finding of fact and recommendation to be filed on or before July 7, 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 the claim in a manner not inconsistent with this order and the opinion issued concurrently;
5. Costs are to be assumed by the reparations fund.
So ordered.
WILLIAM A. CARROLL and PHILLIP E. PARISI, Commissioners, concur.
DALE E. THOMPSON, Commissioner, concurs separately.
Without reaching the question of the constitutionality of R.C. 2743.56(C), I concur with the result based on the Irwin and Staab arguments.