“These legislative statements are crystal clear. We need not dig further into the meaning of the statute than the language that was signed into law.”
Justice O’Neill, majority opinion.
On December 28, 2016, the Supreme Court of Ohio handed down a merit decision in Jacobson v. Kaforey, Slip Opinion No. 2016-Ohio-8434. In an opinion written by Justice O’Neill, the court addressed this certified conflict question, and answered it with a “yes”:
“Does the current version of R.C. 2307.60 independently authorize a civil action for damages caused by criminal acts, unless otherwise prohibited by law?”
Joining the majority opinion in full were Chief Justice O’Connor and Justices Lanzinger and Pfeifer. Justice Kennedy concurred in judgment only and wrote a long separate opinion. She was joined by Sixth District Court of Appeals Judge James Jensen, sitting for the recusing Justice French. Justice O’Donnell wrote a solo dissent. The case was argued April 19, 2016.
In 2001, when she was seven years old, Appellee Jessica Jacobson was hospitalized. Nearly eleven years later, when she was an adult, Jacobson filed a pro se complaint against Appellants Akron Children’s Hospital, Cleveland Clinic Children’s Hospital for Rehabilitation, and Ellen Kaforey, an attorney and registered nurse who had been appointed by the Summit County Probate Court as conservator to help Jacobson’s mother make medical decisions for her daughter.
Relying on R.C. 2307.60, Jacobson sought civil damages for alleged violations of criminal statutes for kidnapping, child enticement, and unlawful restraint. Jacobson alleged that the appellants unlawfully restrained her by keeping her mother from visiting her while she was hospitalized, kidnapped her by arranging without any authority to do so for her to be sent to live in Florida with a family member, and unlawfully enticed her onto a plane to Florida without getting legal permission from her mother.
Appellants all moved to dismiss for failure to state a claim on which relief could be granted, which the trial court granted. The trial court found that “Ohio courts have established that civil actions for damages may not be predicated upon alleged violation of a criminal statute.”
During the appeal of the case, Jacobson’s stepfather, Gary Kirsch was named as her guardian and substituted as party plaintiff. In a split decision, the Ninth District reversed the dismissal of the claims pursuant to R.C. 2307.60. The appeals court then certified a conflict between its judgment and those of the Third, Fifth, and Tenth District Courts of Appeals on the question of whether R.C. 2307.60 creates an independent civil cause of action. The Supreme Court accepted the case on conflict certification.
Applegate v. Weadock, et al., 1995 WL 705214 (3rd Dist.) (“R.C. 2307.60 does not create a separate cause of action. A separate cause of action must be available before this section is invoked.”)
Edwards v. Madison Township, et al., 1997 WL 746415 (10th Dist.) (“R.C. 2307.60 does not create a separate cause of action . . . Hence, a separate cause of action must be available before this section is invoked.”)
McNichols v. Rennicker, 2002-Ohio-7215 (5th Dist.) (“Revised Code 2307.60 does not create a cause of action . . . [A] separate civil cause of action must be available to bring a civil claim based upon a criminal act.”)
Groves v. Groves, 2010-Ohio-4515 (10th Dist.) (“R.C. 2307.60 does not create a cause of action . . . A party must rely on a separate civil cause of action, existent either in the common law or through statute, to bring a civil claim based on a criminal act.”)
Key Statutes and Precedent
R.C. 2307.60(A)(1) (“Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney’s fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code.”)
R.C. 2905.03 (“No person, without privilege to do so, shall knowingly restrain another of the other person’s liberty . . . Whoever violates this section is guilty of unlawful restraint, a misdemeanor of the third degree.”)
R.C. 2905.01 (Statutory requirements for criminal kidnapping.)
R.C. 2905.05 (Statutory requirements for criminal child enticement.)
RC 2307.50 (civil action to recover damages for interference with the parental or guardianship interest.)
R.C. 1.49 (Non-exhaustive list for courts’ determination of legislative intent where the statute is ambiguous: (A) The object sought to be attained; (B) The circumstances under which the statute was enacted; (C) The legislative history; (D) The common law or former statutory provisions, including laws upon the same or similar subjects; (E) The consequences of a particular construction; (F) The administrative construction of the statute.)
Schmidt v. State Aerial Farm Statistics, Inc., 62 Ohio App.2d 48, 403 N.E.2d 1026 (6th Dist.1978) (the first appellate decision in Ohio to determine that R.C. 1.16—now R.C. 2307.60—did not create a civil cause of action, but rather codified common law standard that a civil action does not merge with a criminal action.)
State v. Hurd, 89 Ohio St.3d 616, 618 (2000) (The key determination in interpreting a statute is whether it is “plain and unambiguous.”)
Dunbar v. State, 2013-Ohio-2163 (An inquiry regarding the interpretation of a law requires an ambiguity in one or more of its provisions. To attempt to interpret a statute beyond its unambiguous and plain meaning invades the province of the legislature.)
Morgan v. Ohio Adult Parole Auth., 68 Ohio St.3d 344, 626 N.E.2d 939 (1994) (Courts do not have the authority to go beyond the plain meaning of an unambiguous statute “under the guise of either statutory interpretation or liberal construction.”)
State v. Wilson, 77 Ohio St. 3d 334, 336 (1997) (“In reviewing a statute, a court cannot pick out one sentence and disassociate it from the context, but must look to the four corners of the enactment to determine the intent of the enacting body.”)
If you are doing the math, five justices and one subbing appellate judge agree that R.C. 2307.60 creates a civil cause of action for damages resulting from any criminal act, unless prohibited by law. But four find the statute straightforward and unambiguous; two find it ambiguous and in need of interpretation to come to that conclusion. And there’s one dissent.
Simple Straightforward Approach
In a Nutshell
The statute means exactly what it says.
The majority opinion of the court could not be more straightforward. It is this. The statute is unambiguous. Unambiguous statutes need no interpretation. In fact, without a finding of ambiguity, any inquiry into legislative intent or legislative history is inappropriate. By its plain and unambiguous terms, R.C. 2307.60(A)(1) creates a statutory cause of action for damages resulting from any criminal act. The wording chosen makes this clear, as does the preamble of the language in R.C. 2307.60(A)(1) which became effective in 1985. The General Assembly clearly meant to create a civil cause of action for damages resulting from any criminal act. Even though R.C. 2307.60 has been amended several times since 1985, the present version of R.C. 2307.60(A)(1) continues to authorize a civil action for damages based on violation of any criminal statute unless an exception applies.
Justice O’Neill made it clear that the court was venturing no opinion on what Jacobson would need to do to prove any of the claims she has raised.
A Little Dig at the Separate Concurrence?
Justices French (not on this case) and Kennedy have been hurling activism barbs quite a bit at Justices O’Neill, Pfeifer, Lanzinger and the Chief in this last rush of December 2016 cases, so Justices O’Neill hurled one back:
“If we were to brazenly ignore the unambiguous language of a statute, or if we found a statute to be ambiguous only after delving deeply into the history and background of the law’s enactment, we would invade the role of the legislature: to write the laws.”
Gnarly and Complicated Approach
In A Nutshell
Justice Kennedy thinks R.C. 2307.60 is ambiguous, but after a long and winding road, agrees that it independently creates a civil cause of action.
What is Ambiguous?
“has ***a civil action”
So How Does Justice Kennedy Go About Interpreting the Statute?
By looking at the factors in R.C. 1.49. She does this in painstaking detail, which you can read for yourselves if you enjoy this kind of thing, and comes to this conclusion:
“Based on the circumstances surrounding the original amendments that became effective in 1985, the former statutory provisions, and the compelling legislative history, it becomes clear that when the General Assembly recodified former R.C. 1.16 as R.C. 2307.60, it intended to create an independent civil cause of action for any crime victim injured in person or property. Furthermore, the fact that the General Assembly has never changed the key language of R.C. 2307.60 at issue in this case and the consequences of interpreting R.C. 2307.60 as not creating an independent civil cause of action demonstrate the original intention expressed by the General Assembly in the legislation that became effective in 1985 continues today.”
Case Law Relied on by Appellants is Bad
Kennedy goes through each of the six principal cases relied on by appellants, and concludes that the courts in those cases “either relied on case law that the legislature had abrogated, as indicated by the legislative history of R.C. 2307.60, or cited no authority at all.” She chided the appellants for not explaining how these decisions could have any precedential value.
Just Because the Legislature Allows Specific Recovery in Some Places Doesn’t Diminish General Right to Independent Cause of Action
Some statutes expressly allow for civil causes of action for certain crimes. Some examples are child stealing, identify theft, and theft of cable television services. Appellants had argued that if R.C. 2307.60 were interpreted to allow for civil causes of action for violation of all criminal statutes, those specific statutes would be meaningless. Kennedy disagrees, saying all are within the policy choices of the General Assembly.
Subbing Judge Jensen joined this concurrence.
Justice O’Donnell’s Dissent
It is Justice O’Donnell’s position that R.C. 2307.60 merely codifies Ohio common law that a criminal prosecution does not extinguish a civil cause of action, and does not create an independent cause of action. This was the position of the appellants and the court of appeals dissent. He would answer the certified question with a “no.”
O’Donnell believes that the phrase “anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law” is ambiguous, and goes through many of the same basics of statutory construction as Justice Kennedy did, but comes to the opposite conclusion. He thinks any changes to the statute over the years were technical only, and that none of the eight amendments to the statute has ever changed the legislative intent that the statute is only a codification of the Ohio common law that a civil action is not merged into a criminal prosecution. He buys the argument that legislatively created civil causes of action for violations of specific criminal statutes, which he lists, proves the point that R.C. 2307.60 does not create a separate independent cause of action for a violation of a criminal statute, or there would be no point or need to enact these individual specific statutes—the exact opposite conclusion than that drawn by Justice Kennedy. As to which one is right, I leave to the law review article writers, who should have a field day with this decision.
Finally, O’Donnell notes that because there already are common law civil actions for false imprisonment, assault, and battery, there is no need for the legislature to create civil actions for unlawful restraint, assault, and battery statutes.
I missed on this one. As a torts person it certainly opens some very interesting windows, and is a very expansive reading. It will be interesting to see how the elements of some of these torts unfold. As to the main point of disagreement, I honestly don’t see the ambiguity in the statute.
As for Jacobson, her battle has just begun. It will be interesting to see if she can prove any of these new torts.