Update: On November 12, 2020 the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
“You think that when the average voter went to vote on this amendment 2 or 3 years ago, they thought they were creating rights for municipalities?”
Justice DeWine, to counsel for Centerville
“Does Marsy’s Law have language in that constitutional provision that says this trumps all other statutes that would be contrary to what is the contents of Marsy’s Law?”
Chief Justice O’Connor, to counsel for Knab
On June 2, 2020, the Supreme Court of Ohio heard oral argument in City of Centerville v. Michael P. Knab, 2019-0873. At issue in this case is whether a municipality is a “victim” under Article I, Section 10a of the Ohio Constitution and is entitled to restitution when it is directly and proximately harmed by a criminal act.
Case Background
On April 3, 2018, Michael P. Knab called 9-1-1 and reported that there was an active shooter at his residence and that someone had been shot. After several officers from the Centerville Police Department responded to Knab’s residence, they were informed by Knab’s mother and friend that there was neither an active shooter nor an injured person present. The officers’ subsequent search of the residence confirmed that Knab’s report of an active shooter was false. Knab was charged with making a false report to a law enforcement agency and improper use of a 9-1-1 system and was subsequently found guilty. The trial court held a restitution hearing and ordered Knab to pay $1,375.56 in restitution to the Centerville Police Department.
Knab appealed, arguing that the trial court erred in ordering him to pay restitution to the Centerville Police Department.
The Appeal
In a unanimous decision, the Second District Court of Appeals reversed the trial court’s judgment awarding restitution to the Centerville Police Department. The Second District concluded that governmental agencies in general, responding in their official capacities, and the Centerville Police Department in particular in this case do not qualify as a “victims” to whom restitution may be ordered. The court found that while Marsy’s Law does expand the definition of “victim,” it does not expressly authorize courts to designate law enforcement agencies as victims entitled to restitution for their official duties. The court reasoned that, absent explicit statutory language providing that governmental agencies can be characterized as victims, a judicial ruling cannot rewrite the statute to provide for such characterization.
Centerville’s Proposition of Law Accepted for Review
A municipality qualifies as a “victim” under the Ohio Constitution’s Bill of Rights, at Article I, Section 10a, known as Marsy’s Law, and is entitled to “full and timely restitution” when it is “directly and proximately harmed” by the commission of a criminal offense or act.
Key Statutes and Precedent
*Ohio Constitution, Article 1, Section 10(a) (Marsy’s Law) (“ . . . ‘victim’ means a person against whom the criminal offense or delinquent act is committed or who is directly and proximately harmed by the commission of the offense or act.”)
*R.C. 1.59(C) (“Person” includes an individual, corporation, business trust, estate, trust, partnership, and association.)
R.C. 2929.28(A)(1) (A court may impose sanctions in the form of restitution to be paid by the offender to the victim of the criminal activity but does not define victim.)
R.C. 2930.01(H)(1) (A victim is defined as “a person who is identified as the victim of a crime . . . in a police report or in a complaint, indictment, or information that charges the commission of a crime and that provides the basis for the criminal prosecution.”)
*Cook County v. United States ex rel. Chandler, 538 U.S. 119 (2003). (Presumption that statutory use of the term “person” extends beyond natural persons to include private and municipal corporations also, unless history and context of the statute point to a more limited use of the term and exclusion of municipal corporations.)
*State v. Carswell, 2007-Ohio-3723 (in interpreting a constitutional amendment, `[t]he body enacting the amendment will be presumed to have had in mind existing constitutional or statutory provisions and their judicial construction, touching the subject dealt with.'” )
State v. Christian, 2014-Ohio-2672 (2nd Dist.) (“Without specific expression of such an intent, [the Court] cannot conclude that the legislature intended to make law enforcement or other governmental agencies, whose only involvement in the reported crime is their response to it in their official capacities, eligible for restitution.”)
State v. Turner, 2018-Ohio-2860 (2nd Dist.) (As a general rule, “governmental agencies are not victims of crimes to which they respond in their official capacities.”)
*cited by counsel at argument
Arguing Counsel
Steven E. Bacon, Altick & Corwin Co., L.P.A., Dayton, for Appellant City of Centerville
Patrick T. Clark, Assistant State Public Defender, Office of the Ohio Public Defender, Columbus, for Appellee Michael Knab
City of Centerville’s Argument
The issue in this case is whether a municipality is to be considered a victim of a crime and entitled to restitution under Ohio law. Both questions are answered by two provisions of Marsy’s Law concerning victim’s rights. The first defines a victim as a person against whom an offense or criminal act is committed or who is directly and proximately harmed by the offense or act. The second states victims shall have a right to full and timely restitution from the person who committed the crime. Taken together, these two provisions effectively mandate the proposition of law offered by the city, that a municipality qualifies as a victim under Marsy’s Law which was overwhelming approved by Ohio voters in November of 2017. In the context of this case, this means that Centerville would qualify as a victim of crime and would be entitled to restitution for harm it suffered as a direct and proximate result of Michael Knab’s criminal acts.
Mr. Knab falsely reported in a 911 call that there was an active shooter in his home and that individuals were injured. Centerville is a relatively small city and this crime required it to allocate all its resources to respond to this call. So, the trial court properly awarded restitution to the city for the cost of the officers’ time in responding to that call. A number of people were taken away from their regular duties to help with responding to this call. While the city did not pay extra wages, the city lost the resources of multiple officers and command personnel from their regular jobs which then must be made up differently or in a different manner. The city essentially lost that time and had to reallocate resources. If the improper use of a 911 system is an offense directed toward anyone, it’s directed toward the municipality that receives the call.
A municipal corporation should be considered a victim entitled to restitution whenever it suffers harm as a direct and proximate result of a crime or when a crime is directly committed against it. When that injury occurs may be a determination that needs to be made on a case-by-case basis or as the law develops. In this case the “direct and proximate” requirement acts as a check on the concerns of the amicus briefs with regard to the application of the law.
The appeals court erred in looking to prior case law interpreting the restitution statute. It should have been looking only at the definition set forth in Marsy’s Law because Marsy’s Law is the supreme law of Ohio and it expressly states that it supersedes prior law and is self-executing.
Knab’s Argument
Centerville is asking for restitution to pay for the hourly wages of government employees. That would be a budget subsidy from one of its residents for costs that would have occurred on April 3, 2018 even if Mr. Knab had never called 911.
This Court should hold that Article I section 10a of the Ohio Constitution does not give municipalities any procedural or substantive rights. Marsy’s Law protects crime victims, not the government. This does not leave the city’s hands tied. There are crimes for which restitution would be recoverable. The General Assembly is more than able to carve out situations where municipal restitution is appropriate, and that question should be left to the General Assembly. Defining “victim” as including municipalities for overtime expenses becomes very thorny as a factual matter because some expenditure of municipal funds or resources is discretionary. The way in which a city responds to a crime plays a role in how expenses are incurred. We should leave it to the General Assembly to draw those fine lines. We can and should do so because Marsy’s Law does not compel the outcome that the city seeks in this case.
The Chandler presumption that the city referenced, that cities are people, does not apply here. That presumption is rebuttable for three reasons–the history of municipal corporations in Ohio, the competing State v Carswell presumption about how to interpret citizen initiatives and the proponent language that was used in Marsy’s law.
The Chandler presumption is based on case law from the early 19th century. The history of municipal corporations in Ohio shows that municipalities today have broader governmental powers than they did when that presumption was developed. The cases that undergird the Chandler presumption were decided long before Ohio municipalities were given home rule rights. The broad definition of municipal corporations as understood in the 19th century does not apply to municipal corporations as they are today in Ohio.
To answer the question as to whether municipalities are people for the purpose of Marsy’s Law, we need to look at State v Carswell, which says there is a presumption that the Revised Code supplies definitions of general terms in an initiative. R.C. 1.59 defines a person as an individual, corporation, business, trust, estate, partnership, or association. Just because the word “corporation” is in that general definition, doesn’t mean municipal corporations are persons. Many other sections of the Revised Code suggest otherwise. There are specific narrower definitions of person for specific chapters that include municipal corporations.
Municipal corporations can go into court and sue, but Article I deals with rights that refer to individuals. The Constitution defines our municipalities not in terms of rights they have against the government but in terms of positive power they have to exercise as governments. There is an entire section of the Ohio Constitution devoted to municipalities, what they may do, what their rights are as against state government, and Marsy’s Law is simply not referenced anywhere in Article 18.
Finally, we must look to the proponents’ statements in support of Marsy’s Law because those statements are consistent with the Carswell presumption that municipalities are not people. The proponents’ statements spoke in terms of individuals and families and giving victims dignity interests. It is true that Marsy’s Law was broadly supported by the Ohio public. But it’s far less than clear that the Ohio public would have supported including municipalities in the definition of persons.
The definition of “person” as part of the definition of Marsy’s Law is not capacious enough to include municipal corporations. The General Assembly can always enact additional laws expanding municipal restitution that don’t conflict with Marsy’s Law. That is where such a decision belongs.
If there is room in Marsy’s Law for cities to be victims, perhaps for proprietary but not governmental functions, it will be necessary to examine the harm received. This is the wrong case to do so because there was no harm to the city here. There will be a situation where the issue is more squarely presented. So, this Court should consider dismissing this appeal as improvidently accepted or else affirm the decision of the Second District.
What Was On Their Minds
The City as Victim
Under the city’s definition wouldn’t the government be entitled to restitution for any crime, asked Justice DeWine? What would be the check on that? Doesn’t a city have to expend funds on any crime? What makes this situation different? Doesn’t any crime naturally lead to an investigation which leads to the expenditure of taxpayer dollars? Is there some particular defining fact as to what is a compensable loss? Why wouldn’t the proximate cause of any investigation be the crime that led to the investigation? Does proximate cause turn on whether the harm was exceptional? If there is a lot of investigation that makes it a proximate cause? Or if there is overtime? Only if you have additional police who aren’t on duty, that’s the proximate cause? How does the Court write a rule that would apply to other cases?
Is the question whether or not the municipality can be a victim or whether or not what happened here created harm, asked Chief Justice O’Connor? Is it universally true that non-human entities can be victims? You’re a victim whether there is an injury or not, if you’re involved in some way? Whether or not you can quantify your harm or your damage or your loss?
Restitution for Cities
If a perpetrator bombed a city building, can the city recover in restitution for the cost of the building, asked Justice Fischer? Would the city be a victim in that case?
Harm/Loss to the City
In this situation the city was paying its officers whether they responded to that call or not, noted Justice French. So even if we were to agree that under some circumstances the word “person” might include an entity other than a natural person, why would it be extended here where the city was acting in its governmental capacity and the costs that it was incurring would be costs the city would normally incur?
Should the standard of finding a loss no longer be employed here, asked Chief Justice O’Connor? Only the definition of victim controls? Was there any loss to the City? They didn’t pay extra wages, did they? Were there calls that went unanswered? Were there other citizens that did not have police resources as a result of this? Wasn’t what the defendant did done against the city? She commented that one doesn’t have to have harm to be a victim.
Municipal Corporations as Persons
Article I Section 16 says all courts shall be open and every person for an injury done has an opportunity to go to court. Don’t municipal corporations fit that definition of person, asked Justice Fischer? Can’t they go to court?
Marsy’s Law
If in this situation the city had to bring in more staff, more police, brought in the SWAT team that were off duty and now are getting overtime, would that be covered under other statutes rather than under Marsy’s law, asked Chief Justice O’Connor? That’s not recoverable right now because that is the business of the police department? Doesn’t the blanket language of Marsy’s Law do away with the distinctions the defendant is attempting to make because it would be contrary to the definition of victim in Marsy’s Law?
How it Looks from the Bleachers
To Professor Emerita Marianna Bettman
I think Centerville will lose, but this one is messy because of Marsy’s Law. I also think it is reasonable to assume that the average voter didn’t intend for cities to be included as victims when they passed Marsy’s Law, but it must be presumed voters understood the law.
Without Marsy’s Law, I doubt the Court would consider the city a victim here. But Marsy’s Law says it shall supersede all conflicting state laws, which seems to derail a lot of the arguments made by Mr. Clark on Knab’s behalf. The Constitutional definition of victim which is at issue here is “a person against whom the criminal offense or delinquent act is committed or who is directly and proximately harmed by the commission of the offense or act.” Justice DeWine was just merciless about this causation element in questioning Mr. Bacon for the city, repeatedly asking why the proximate cause of any investigation wouldn’t be the crime that led to that investigation. He didn’t seem satisfied with any answer he got from Mr. Bacon on that subject.
Justice French seemed to put this most succinctly, when she suggested that even if the Court were to agree that under some circumstances the word “person” might include a non-human entity, why should that be the case here where the city was acting in its governmental capacity and the costs that it was incurring would be costs the city would incur anyway. And the Chief asked whether the issue was whether the city could be a victim or whether what happened here created harm.
So, along these lines, and consistent with the reasoning of the Second District, the Court could find the city, while definitionally a victim, is not entitled to restitution for damages in fulfilling a governmental function, which seems like a reasonable limitation if the Court must go down the rabbit hole of finding a municipal corporation a victim. Here that would mean that the city suffered no loss in this case, meaning no provable damages because the city had to pay those police officers regardless and admitted there were no extra police or overtime involved.
Finally, the Court could dismiss the case as improvidently accepted, which Mr. Clark suggested he would settle for, but I don’t think that would be especially helpful since the issue is likely to recur.
To Student Contributor Chelsea Rush
Probing counsel for both sides, the justices seemed to want a standard for defining victim that is not only reconcilable with the Ohio Constitution, but that is a workable standard for future situations. Based on the line of questioning, I am not sure they received exactly what they were looking for from either side.
Justice DeWine appeared dissatisfied with Centerville’s use of proximate harm to determine when a municipality qualifies as a victim of crimes to which it responds. Justice DeWine lamented the fact that a municipality must always use resources to respond to a crime and, thus, would always be proximately harmed by crimes, under Centerville’s position. The justice questioned how, under Centerville’s proposed standard, governments would be limited from claiming victim status after responding to every crime – inquiries that demonstrated uncertainty in the workability of Centerville’s definition of victim. Centerville was furthered challenged to postulate whether average Ohio voters who approved Marsy’s Law understood the law to include municipalities acting in governmental functions.
Knab, in turn, argued that Marsy’s Law simply was not drafted to provide rights to municipalities as victims, as evidenced by the law’s use of the word “person” when describing a victim. Knab further argued that express provisions for municipalities’ rights in the Ohio Constitution and Revised Code demonstrate the fact that Marsy’s Law was meant to provide for persons, while other areas of Ohio law provide for municipalities. When questioned about the fact that Marsy’s Law expressly states that it supersedes all conflicting prior statutory and case law, Knab responded that prior laws providing for municipalities’ rights do not conflict with Marsy’s Law because of the intended narrow definition of victim as a person. The bench further pressed counsel on how to understand and define a victim based on harm suffered by crimes and whether, if harmed by something like a bombing, a municipality could recover restitution.
Again, to me, the justices did not appear to receive a buttoned-up standard for defining victim under Marsy’s Law and understanding how municipalities’ rights factor in the equation. Based on the amount of policy implications at stake and the likelihood that average Ohio voters did not understand Marsy’s Law to include municipalities, I believe the Court will opt for a narrow reading of the term victim and will affirm the Court of Appeals decision that restitution was improper in this case.