Opinion
No. V89-83997.
Decided May 14, 1991.
James P. Lay, pro se. Lee Fisher, Attorney General, for the state.
On December 7, 1989, the applicant, James P. Lay, filed a reparations application, on behalf of his minor daughter, Jamie T. Lay, seeking reparation for a sexual assault on his daughter. The minor daughter was four years old on the date of the assault. The offender was charged on November 2, 1986, with gross sexual imposition.
On May 11, 1990, the single commissioner issued an opinion and order wherein she denied applicant's claim based on the statute of limitations. Former R.C. 2743.56(C)(1) stated, in part, that:
"All applications for an award of reparations shall be filed as follows:
"(1) If the victim of the criminally injurious conduct was a minor, within two years from the date a complaint, indictment, or information is filed against the alleged offender." See 141 Ohio Laws, Part III, 5475, 5476.
The applicant filed an objection and notice of appeal from the single commissioner's decision. The objection was heard before a panel of commissioners. The panel issued an order on November 20, 1990, wherein it found that consistent with the recent panel holding of In re Brunnet (June 22, 1990), Ct. of Cl. No. V89-52714tc, unreported, affirmed in decision only by a judge of this court on October 3, 1990, R.C. 2743.56(C)(1) is unconstitutional as applied to infants under the age of eighteen years based upon Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 28 OBR 346, 503 N.E.2d 717, and In re Traylor (1989), 61 Ohio Misc.2d 772, 584 N.E.2d 1377. Finding R.C. 2743.56(C)(1) unconstitutional, the panel reversed the order of the single commissioner.
On December 5, 1990, the Attorney General filed a notice of appeal to this court from the panel's determination. The Attorney General's appeal of the panel's decision was heard by this court on February 14, 1990. The court has reviewed the applicant's claim and renders the following decision.
In reviewing claims appealed from the panel of commissioners, the court is guided by R.C. 2743.61, which provides, in pertinent part, as follows:
"If upon hearing and consideration of the record and evidence, the court decides that the decision of the commissioners appealed from is reasonable and lawful, it shall affirm the same, but if the court decides that the decision of the commissioners is unreasonable or unlawful, the court shall reverse and vacate the decision or modify it and enter judgment thereon."
Upon consideration of the file in this matter and the applicant's contentions, it is the court's opinion that R.C. 2743.56(C)(1) is unconstitutional as applied to minors and the decision of the panel of commissioners is reasonable and lawful.
The Ohio Supreme Court in Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 28 OBR 346, 503 N.E.2d 717, held that the medical malpractice statute of limitations, as applied to minors, was unconstitutional under the due course of law provision of the Ohio Constitution.
The Supreme Court reasoned that:
"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." Id. at 275, 28 OBR at 350-351, 503 N.E.2d at 721.
This court adopts this reasoning as to R.C. 2743.56(C)(1). There is no tolling provisions for the Crime Victims Compensation Act. In contrast, the medical malpractice statute contained a limited tolling provision. Thus, this court's opinion is that it is unreasonable and patently arbitrary to foreclose minors the opportunity to bring a claim for compensation through the Crime Victims Compensation Act.
In adopting the reasoning of Mominee, the court finds that the minor has no standing to bring a crime victims application on her own behalf, just as minors had no standing to bring their medical malpractice actions in Mominee. Additionally, the appointment of a guardian or relying on the parent to bring the application is not a viable alternative.
The appointment of a guardian would not cure this defect, since it has been held in most jurisdictions that the appointment of a guardian does not cause the statute of limitations to begin running against the minor. 66 Ohio Jurisprudence 3d 268 (1986), Limitation and Laches, Section 121. Thus, even if a guardian has been appointed, the statute of limitations does not begin to run against the minor.
As the Mominee court reasoned, the parents may not always timely bring the action on behalf of the minor:
"First, because of the inability of many children to recognize or articulate physical problems, parents may be unaware that medical malpractice has occurred. Second, the parents themselves may be minors, ignorant, lethargic, or lack the requisite concern to bring a malpractice action within the time provided by statute. See Sax v. Votteler (Tex. 1983), 648 S.W.2d 661, 667. Third, there may effectively be no parent or guardian, concerned or otherwise, in the minor's life. For example, children in institutions, foster homes, and wards of the court or others are provided no safeguards, nor do such minors have the requisite ability to seek redress or to protect personal interests." Mominee at 275-276, 28 OBR at 351, 503 N.E.2d at 721-722.
Thus, the practical effect is that if a parent or guardian does not protect the minor's interest, the minor could be foreclosed from filing what may be a legitimate claim for reparations. This foreclosure, as in Mominee, violates the due course and open court provisions of the Ohio Constitution.
Section 1, Article I of the Ohio Constitution provides:
"All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety."
Section 16, Article I, states in relevant part:
"All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay."
Therefore, the court holds that R.C. 2743.56(C)(1) is unconstitutional as applied to minors, since it forecloses their opportunity to file an application for reparations. The effect of this decision gives minors the same protection afforded by R.C. 2305.16, which would toll the statute of limitations until the minor reaches the age of majority.
Based on the foregoing analysis, it is the court's opinion that the decision of the panel of commissioners was reasonable and lawful. Therefore, this court affirms the three-commissioner panel and hereby GRANTS the applicant's claim.
ORDER
Upon review of the evidence, the court finds the order of the panel of commissioners must be affirmed and the applicant's appeal must be denied.
IT IS HEREBY ORDERED THAT:
1. The order of November 20, 1990 (Jr. Vol. 835, Pages 64-65) is approved, affirmed and adopted;
2. This claim is remanded to the single commissioner and referred to the Attorney General for a new finding of fact and recommendation as to unreimbursed economic loss to be filed with the court on or before June 13, 1991;
3. The applicant should have the opportunity to respond to the new finding of fact and recommendation within twenty-one days after it is filed by the Attorney General;
4. Costs assumed by the reparations fund.
Judgment accordingly.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.