State ex rel. Ferguson v. Court of Claims of Ohio, Victim of Crime Div. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Ferguson v. Court of Claims of Ohio, Victim of Crime Div., 98 Ohio St.3d
399, 2003-Ohio-1631.]

THE STATE EX REL. FERGUSON, APPELLANT, v. COURT OF CLAIMS OF OHIO,
VICTIMS OF CRIME DIVISION, ET AL., APPELLEES.
[Cite as State ex rel. Ferguson v. Court of Claims of Ohio, Victims of Crime
Div., 98 Ohio St.3d 399, 2003-Ohio-1631.]
Court of Claims -- Reparation awards to victims of crimes -- Mandamus sought
to compel respondents Court of Claims of Ohio, Victims of Crime
Division et al., to vacate the Court of Claims orders denying benefits to
relator and to pay him benefits -- Court of appeals' dismissal of
complaint affirmed.
(No. 2002-1724 -- Submitted February 25, 2003 -- Decided April 16, 2003.)
APPEAL from the Court of Appeals for Franklin County, No. 02AP-299, 2002-
Ohio-4314.
__________________

Per Curiam.
{¶1} On November 20, 1999, appellant, John Ferguson, was the victim
of a criminal assault in Wood County, Ohio. On January 18, 2000, Ferguson
applied for a reparations award under the Victims of Crime Act, R.C. 2743.51 et
seq.
{¶2} Following an investigation, appellee Ohio Attorney General
recommended that Ferguson's application be denied under R.C. 2743.60(E)
because he had engaged in felonious conduct within ten years prior to the
criminally injurious conduct that gave rise to his claim. In February 2001, a
single commissioner of appellee Court of Claims of Ohio, Victims of Crime
Division, denied Ferguson's claim because of his "felonious conduct which
occurred within ten years prior to the criminally injurious conduct." The
commissioner noted that on May 17, 1994, while Ferguson was being arrested for

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certain traffic violations, he had engaged in conduct that would have constituted a
felony offense of escape:
{¶3} "The Attorney General's investigation revealed that the applicant
was arrested for various traffic violations on May 17, 1994. When the police tried
to handcuff the applicant, he ran from the arresting officer and escaped. Pursuant
to former R.C. 2921.34, escape constituted a felony of the fourth degree.
However, the applicant was permitted to plead guilty to a misdemeanor count of
failure to comply."
{¶4} Ferguson objected to the commissioner's decision, and in
September 2001, a panel of three commissioners overruled Ferguson's objection
and affirmed the denial of Ferguson's claim.
{¶5} Ferguson appealed the panel's order, and in February 2002,
appellee Court of Claims Judge Fred J. Shoemaker denied Ferguson's claim and
entered judgment for the state of Ohio. Judge Shoemaker held that Ferguson had
failed to prove by a preponderance of the evidence that he was entitled to an
award of reparations.
{¶6} On March 13, 2002, Ferguson filed a complaint for a writ of
mandamus in the Court of Appeals for Franklin County. In his complaint, as
subsequently amended, Ferguson sought a writ of mandamus to compel appellees,
the Court of Claims of Ohio, Victims of Crime Division, Judge Shoemaker, and
the Ohio Attorney General, to vacate the Court of Claims orders denying benefits
to Ferguson and to pay him benefits. Appellees moved to dismiss Ferguson's
complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which
relief can be granted.
{¶7} In May 2002, a court of appeals magistrate recommended that the
court of appeals grant appellees' motion and dismiss Ferguson's complaint.
Ferguson objected to the magistrate's decision, and on August 20, 2002, the court
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January Term, 2003
of appeals overruled Ferguson's objection, adopted the magistrate's
recommendation, and denied the writ of mandamus.
{¶8} This cause is now before the court upon Ferguson's appeal as of
right.
Civ.R. 12(B)(6) Standard
{¶9} Ferguson asserts that the court of appeals erred in granting
appellees' Civ.R. 12(B)(6) motion and dismissing his mandamus complaint for
failure to state a claim upon which relief can be granted. The dismissal was
appropriate if, after all factual allegations of the complaint were presumed true
and all reasonable inferences were made in Ferguson's favor, it appeared beyond
doubt that Ferguson could prove no set of facts warranting the requested
extraordinary relief in mandamus. State ex rel. Ragozine v. Shaker, 96 Ohio St.3d
201, 2002-Ohio-3992, 772 N.E.2d 1192, ¶ 7; State ex rel. Hummel v. Sadler, 96
Ohio St.3d 84, 2002-Ohio-3605, 771 N.E.2d 853, ¶ 20.
{¶10} In order to be entitled to the requested extraordinary relief in
mandamus, Ferguson had to establish a clear legal right to the vacation of the
Court of Claims' denial of his claim, a corresponding clear legal duty on the part
of the Court of Claims, and the lack of an adequate remedy in the ordinary course
of the law. State ex rel. N. Olmsted v. Cuyahoga Cty. Bd. of Elections (2001), 93
Ohio St.3d 529, 532, 757 N.E.2d 314. These requirements would have been
satisfied if the Court of Claims had abused its discretion in denying his
application for crime-victim reparations. State ex rel. Jenkins v. Tyack (1985), 17
Ohio St.3d 242, 17 OBR 479, 479 N.E.2d 267, syllabus; State ex rel. Bernard v.
Kainrad (1986), 28 Ohio St.3d 103, 104, 28 OBR 196, 502 N.E.2d 632.1 "

1 This appears to be an exception to the general rule that "a writ of
mandamus will not issue to control judicial discretion, even if that
discretion is abused." State ex rel. Carroll v. Corrigan (2001), 91
Ohio St.3d 331, 332, 744 N.E.2d 771.
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`Abuse of discretion' implies an unreasonable, arbitrary, or unconscionable
attitude." State ex rel. Wilke v. Hamilton Cty. Bd. of Commrs. (2000), 90 Ohio
St.3d 55, 61, 734 N.E.2d 811.
{¶11} For the reasons that follow, dismissal was warranted because
Ferguson could not establish that the Court of Claims abused its discretion in
denying his crime-victim reparations claim.
Statutory Construction
{¶12} The Court of Claims held that Ferguson's claim for benefits was
barred by former R.C. 2743.60(E), which applied to his claim2 and provided that
no award may be granted if a preponderance of the evidence establishes that the
victim or claimant engaged in felonious conduct within ten years of the criminally
injurious conduct giving rise to the claim:
{¶13} "(E) Neither a single commissioner nor a panel of commissioners
shall make an award to a claimant if any of the following applies:
{¶14} "* * *
{¶15} "(3) It is proved by a preponderance of the evidence presented to
the commissioner or the panel that the victim or the claimant engaged, within ten
years prior to the criminally injurious conduct that gave rise to the claim or during
the pendency of the claim, in conduct that would constitute a felony under the

2 R.C. 2743.60(E) was amended effective July 1, 2000, but that
amendment provided that "[f]or purposes of an application for an
award of reparations under sections 2743.51 to 2743.72 of the Revised
Code, any issues concerning participation in the program, eligibility
for benefits, and exclusionary conditions shall be determined under
the version of those sections in effect at the time of the criminally
injurious conduct." Section 3 to Am.Sub. S.B. No. 153, 148 Ohio
Laws, Part IV, 9248. The criminally injurious conduct that Ferguson
suffered occurred on November 20, 1999, before the amendment
became effective.
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January Term, 2003
laws of this state, another state, or the United States." (Emphasis added.) 1996
Sub.S.B. No. 363, 146 Ohio Laws, Part III, 4371.
{¶16} Ferguson suggests in part that only a prior felony conviction within
ten years of the criminally injurious conduct that is the basis for the claim can bar
an otherwise meritorious reparations claim. In analyzing former R.C.
2743.60(E)(3), "we must first review the statutory language, reading undefined
words and phrases in context and construing them in accordance with the rules of
grammar and common usage." State ex rel. Portage Lakes Edn. Assn., OEA/NEA
v. State Emp. Relations Bd., 95 Ohio St.3d 533, 2002-Ohio-2839, 769 N.E.2d 853,
¶ 36. After so construing the pertinent language, it is evident that the statute
requires only "conduct that would constitute a felony" and not a felony
conviction. (Emphasis added.) If the General Assembly had intended to limit this
bar to reparations to convictions, it could have readily done so with the
appropriate language. In fact, it did so in former R.C. 2743.60(E)(1) and (2),
which both required felony convictions within the applicable ten-year period.
Police Reports
{¶17} Ferguson asserts that the Court of Claims abused its discretion in
relying on an unsworn police report to find the former R.C. 2743.60(E)(3) bar
applicable. Ferguson claims that the report was inadmissible hearsay. Ferguson's
assertion lacks merit. "The Ohio Rules of Evidence do not, of course, obtain in
evaluations and hearings utilized in Victims of Crime reparations claims." In re
Rea (1989), 61 Ohio Misc.2d 732, 739, 584 N.E.2d 1350. As the Court of Claims
held in Rea:
{¶18} "Consequently, hearsay statements, even of the self-serving
variety, are not excluded from consideration. Instead, such statements are
evaluated for trustworthiness and given weight accordingly." Id. See, also, In re
Grow (1983), 7 Ohio Misc.2d 26, 28-29, 7 OBR 175, 454 N.E.2d 618.
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{¶19} R.C. 2743.55(A) expressly provides: "The attorney general, a court
of claims panel of commissioners, or a judge of the court of claims shall
determine all matters relating to claims for an award of reparations. The attorney
general, a court of claims panel of commissioners, or a judge of the court of
claims may order law enforcement officers to provide copies of any information
or data gathered in the investigation of the criminally injurious conduct that is the
basis of any claim to enable the attorney general, a court of claims panel of
commissioners, or a judge of the court of claims to determine whether, and the
extent to which, a claimant qualifies for an award of reparations." (Emphasis
added.) See, also, the comparably worded former R.C. 2743.55(A), 1997
Sub.H.B. No. 478, 147 Ohio Laws, Part II, 4095.
{¶20} Therefore, the Court of Claims did not err in considering the
unsworn police report in its determination of Ferguson's reparations claim.
Res Judicata
{¶21} Ferguson next claims that because he was charged with only a
minor misdemeanor arising out of his May 1994 traffic charges, res judicata
barred the Court of Claims from considering conduct that would have constituted
felony escape from his May 1994 arrest.
{¶22} Res judicata bars the litigation of all claims that either were or
might have been litigated in a first lawsuit. State ex rel. Commt. for the
Referendum of Lorain Ordinance. No. 77-01 v. Lorain Cty. Bd. of Elections, 96
Ohio St.3d 308, 2002-Ohio-4194, 774 N.E.2d 239, ¶ 32.
{¶23} Res judicata did not, however, bar the Court of Claims from
considering Ferguson's felonious conduct in assessing his reparations claim even
though that prior conduct did not result in a conviction. As previously
determined, the plain language of former R.C. 2743.60(E)(3) does not require a
conviction.
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January Term, 2003
{¶24} Moreover, there are qualitative differences between the previous
criminal proceedings and the civil reparations action that prohibit the application
of res judicata. For example, in Walden v. State (1989), 47 Ohio St.3d 47, 547
N.E.2d 962, at the syllabus, we held that "[w]here a person claiming
compensation for wrongful imprisonment has presented an affirmative defense of
self-defense at his criminal trial, and has obtained a judgment of acquittal, that
judgment is not to be given preclusive effect in a proceeding [for wrongful
imprisonment] under R.C. 2305.02." "[T]he qualitative differences between civil
and criminal proceedings [including the differing standards of proof, rules of
discovery, and rules of evidence] militate against giving criminal judgments
preclusive effect in civil or quasi-civil litigation." Id. at 52, 547 N.E.2d 962;
Manley v. Rufus Club Mozambique (1996), 111 Ohio App.3d 260, 263, 675
N.E.2d 1342.
{¶25} Therefore, res judicata did not bar the Court of Claims from
considering evidence of Ferguson's prior felonious conduct in determining his
reparations application.
Stare Decisis
{¶26} Ferguson contends that the Court of Claims abused its discretion
by failing to follow its previous judgments in In re Faris (1996), 85 Ohio Misc.2d
37, 684 N.E.2d 112, and In re Carver (1997), 91 Ohio Misc.2d 178, 698 N.E.2d
151, and in relying on the unreported decision of a three-commissioner panel in In
re Sawyer (Jan. 20, 1995), Ct. of Cl. No. V93-61412, in determining Ferguson's
claim. He asserts that the Court of Claims thereby violated the doctrine of stare
decisis and former S.Ct.R.Rep.Op. 2 (1983), 3 Ohio St.3d xxi.
{¶27} The cases Ferguson relies upon to support his claim, however, are
distinguishable. Faris did not involve any police report, and in Carver, the police
reports did not include the statements of any officers having firsthand knowledge
of the applicant's felonious conduct. Conversely, Ferguson does not claim that
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the police report here fails to include the statements of officers having firsthand
knowledge of his felonious conduct.
{¶28} Furthermore, nothing in either former S.Ct.R.Rep.Op. No. 2(G)(2)
or current S.Ct.R.Rep. 4 requires that the Court of Claims ignore unpublished
opinions. Under former S.Ct.R.Rep.Op. No. 2(G)(2), the Court of Claims was
entitled to treat Sawyer as persuasive authority.
Constitutional Rights
{¶29} Ferguson also asserts that the Court of Claims' interpretation of
former R.C. 2743.60(E) denies crime victims their constitutional rights. But the
plain language of the statute supports the court's interpretation.
{¶30} Moreover, to the extent that Ferguson attacks the constitutionality
of the statute itself, it is presumed to be constitutional unless shown beyond a
reasonable doubt to violate a constitutional provision. State ex rel. Watson v.
Hamilton Cty. Bd. of Elections (2000), 88 Ohio St.3d 239, 242, 725 N.E.2d 255.
Ferguson's generalized attacks have not met that burden.
{¶31} As we observed in rejecting an equal-protection challenge to
former R.C. 2743.60(E):
{¶32} "[T]he rationale to conserve governmental resources by generally
excluding persons associated with crime is apparent on the face of the law.
Conserving scarce resources is a legitimate purpose, and excluding persons
convicted or otherwise shown to have committed felonies promotes that purpose.
Therefore, the classification made by the law is reasonable and does not violate
equal protection of the laws." State ex rel. Matz v. Brown (1988), 37 Ohio St.3d
279, 280-281, 525 N.E.2d 805.
Conclusion
{¶33} Therefore, the court of appeals did not err in dismissing Ferguson's
mandamus complaint. The Court of Claims did not abuse its discretion by relying
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January Term, 2003
on the police report and denying his reparations claim. We thus affirm the
judgment of the court of appeals.
Judgment affirmed.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK, LUNDBERG
STRATTON and O'CONNOR, JJ., concur.
__________________

Carl G. McMahon, for appellant.

Jim Petro, Attorney General, and Martin D. Susec, Assistant Attorney
General, for appellees.
__________________
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