Opinion
No. V89-83849.
Decided February 25, 1993.
William S. Leizman, for the claimant.
Lee Fisher, Attorney General, for the state.
This cause came to be heard before this panel of three commissioners on July 22, 1992 at 1:00 p.m. upon the applicant's February 19, 1992 objection and notice of appeal to the January 31, 1992 decision of the single commissioner.
Neither the applicant, John Jackson, nor anyone on his behalf appeared at the hearing. The Attorney General attended the hearing and moved to waive oral argument. Following a brief discussion of the claim, the panel chairman granted the Attorney General's motion and concluded the hearing.
The single commissioner denied the applicant's claim pursuant to R.C. 2743.60(E) because the commissioner found the applicant was indicted for aggravated robbery, a felony, on May 16, 1978; an active capias for the arrest of the applicant remains outstanding; and, if arrested, the applicant may still be convicted of a felony "within ten years of the criminally injurious conduct." In expressing her rationale for denying the applicant's claim, the single commissioner stated the following: "the court has previously determined in In re Gumpf (1989), 44 Ohio Misc.2d 8, 541 N.E.2d 501 that the purpose of R.C. 2743.60(E) is to bar felons as a class from receiving an award of reparations." We disagree.
R.C. 2743.60(E) states the following:
"(E) 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, and other state, or the United States." (Emphasis added.)
R.C. 2743.60(E) specifically states that the felony exclusion rule is to apply to persons convicted of felonies, or otherwise proved to have engaged in felonious conduct, within ten years prior to the criminally injurious conduct. And it is a "cardinal rule" of statutory interpretation that "a court must first look to the language of the statute itself * * * without deleting employed terms, or inserting that which has not been written." 85 Ohio Jurisprudence 3d (1988) 177-178, Statutes, Section 182. Clearly, if the legislature had intended the "purpose" the single commissioner now proposes, it could easily have deleted the words "prior to" from the statute. Thus, while it may appear appropriate to deny reparations to all persons who have committed serious crimes, whether before or after the criminally injurious conduct, the legislature has not chosen to do so, and it is the duty of this court to interpret the Victims of Crime Act, not to construct or amend it.
Notwithstanding the foregoing conclusion, which is consistent with this panel's determination in In re Butera (Feb. 19, 1993), Ct. of Cl. No. V88-33856tc, unreported, this panel is of the opinion that the single commissioner's finding that the applicant's claim should be denied pursuant to R.C. 2743.60(E) possesses some merit. While we cannot find that the capias alone rises to the level of the exclusionary criteria required by R.C. 2743.60(E), we do find that it is some evidence of felonious conduct when taken in combination with the applicant's lengthy felony arrest record. Therefore, we find the Attorney General has demonstrated, by a preponderance of the evidence, that the applicant engaged, within the ten years prior to the criminally injurious conduct, in conduct that, if proven by proof beyond a reasonable doubt, would constitute a felony.
From review of the file, we find the applicant engaged in felonious conduct within ten years prior to the criminally injurious conduct. We find further that the exclusionary criteria of R.C. 2743.60(E) are applicable to the instant claim. Therefore, this claim must be denied. In addition, the single commissioner's determination that the applicant's claim should be denied pursuant to the prior judicial determination in In re Gumpf (1989), 44 Ohio Misc.2d 8, 541 N.E.2d 501 is hereby overruled, and the January 31, 1992 order of the single commissioner shall be vacated.
IT IS THEREFORE ORDERED THAT:
1. The January 31, 1992 order of the single commissioner is VACATED;
2. This claim is denied, and judgment is entered for the state of Ohio; and
3. Costs be assumed by the reparations fund.
So ordered.
JAMES H. HEWITT, III, PHILLIP E. PARISI and KARL H. SCHNEIDER, Commissioners, concur.