“The normal and ordinary use of the word ‘person’ suggests that Ohio voters would not have understood that term to include a public corporation.”

Justice French, majority opinion

“It is beyond the scope of this case to determine whether a municipal corporation is a ‘person’ protected by Marsy’s Law in relation to its proprietary functions.”

Justice Kennedy, concurrence in judgment only

On November 12, 2020, the Supreme Court of Ohio handed down a decision in Centerville v. Knab, 2020-Ohio-5219. In an opinion written by Justice French, in which Justice Kennedy concurred in judgment only with an opinion and Justice Donnelly concurred in judgment only, the Court held that a municipal corporation is not a victim and has no right to restitution under Marsy’s law, Article I, Section 10a of the Ohio Constitution. The case was argued June 2, 2020.

Case Background

On April 3, 2018, Michael P. Knab called 9-1-1 and reported to the Centerville Police Department dispatcher that there was an active shooter at his residence and that someone had been shot. Several officers from both the Centerville police and fire department responded to the call.  When they arrived at Knab’s house, a friend of Knab’s told the officers there was no active shooter and that no one had been shot, and that Knab was inside and thought people were trying to shoot him. 

Knab surrendered peacefully.  The officers searched the house and confirmed that there were no active shooters and that no one had been shot or hurt. The officers got a warrant to search the property further and found drug paraphernalia, but no firearms.

Ultimately, Knab was charged with making a false report to law enforcement, a first-degree misdemeanor, and improper use of the 9-1-1 emergency system, a fourth-degree misdemeanor.  After a bench trial, Knab was found guilty on both counts. In addition to jail time, a fine, drug and alcohol assessment, and supervised probation, Knab was  ordered to pay the city $1375.66 in restitution, representing the labor costs paid by the city to those responding to the call. Knab appealed.

On the issue pertinent here, the Second District Court of Appeals reversed the trial court’s judgment awarding restitution to the City, finding that Centerville was not entitled to restitution as a victim when carrying out its official duties. The appeals court found that Centerville experienced no economic loss because all the officers who responded to the emergency call were already on duty and would have been paid regardless of this run.  

Read the oral argument preview here and an analysis of the argument here.

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.”)

Ohio Constitution, Article 18, Section 3 (“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”)

R.C. 1.59 (“As used in any statute . . . ‘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.)

Ohio v. Helvering, 292 U.S. 360 (1934) (Whether the word “person” includes a governmental entity “depends on the connection in which the word is found.”)

Castleberry v. Evatt, 147 Ohio St. 30 (1945) (Constitutional text ratified by direct vote should be construed with a consideration for how the language would have been understood by the voters who adopted the amendment.)

State v. Pietrangelo, 2005-Ohio-1686 (11th Dist.) (the government is not a victim for the purposes of restitution when it seeks to recover normal operating costs expended in crime solving.)

State v. Carswell, 2007-Ohio-3723 (the general rule as to the interpretation of constitutional amendments is that the drafters and the voters who approved it were aware of existing Ohio law.)

Cleveland v. State, 2019-Ohio-3820 (Undefined words in the Constitution should be given their common, everyday meaning.)

State v. Allen, 2019-Ohio-4757 (A bank that cashed a forged check and then recredited the depositor’s account for the stolen amount is a victim for purposes of restitution under R.C. 2929.19(A)(1).)

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.

Does the Court adopt Centerville’s Proposed Proposition of Law?

No

Merit Decision

Analysis

Marsy’s Law

Article I, Section 10a of the Ohio Constitution, familiarly known as “Marsy’s Law” went into effect February 5, 2018 after being passed as a ballot initiative.  It was part of a national movement seeking to give victims of crimes constitutional rights equivalent to those accused of committing crimes. When the Marsy’s Law initiative was placed on the 2017 general election ballot, voters were informed that it would expand victims’ rights such as due process, respect and fairness, and require that those rights be protected as strongly as those of the accused. 

The majority opinion spells out the exact ballot language for Marsy’s law at paragraph 15 of the opinion but noted that the ballot language does not include a definition of “victim.” Marsy’s law, however, defines victim as “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.” But it does not define “person” or delineate the type of harm that is eligible for restitution, nor does it provide a procedural mechanism for ordering restitution. The provisions of the amendment are self-executing and supersede all conflicting state laws.

R.C. 2929.28

This statute, which predates Marsy’s Law, provides the mechanism for imposing restitution “in an amount based on the victim’s economic loss” in misdemeanor cases.   But neither that statute nor its definition section defines “victim.” Although the Ohio high court has not dealt with this precise issue, a number of appellate courts have considered the meaning of “victim” both in this statute and its felony counterpart. These courts have held that the government is not a victim when performing the public’s business and is not the object of a crime.

“The general rule in Ohio has been that governmental agencies are not victims of crimes to which they respond in their governmental capacities,” wrote French.  She went on to contrast this situation in which the Court recently held in State v. Allen that a bank was a victim for the purpose of restitution when it cashed a forged check and recredited the depositor’s account for the stolen amount.

Construing Constitutional Text

In construing the text of a constitutional provision ratified by the voters, the Court must consider how the language would have been understood by the voters who adopted the amendment. This can include more than just an analysis of the words used, including the history of the amendment, the circumstances surrounding its adoption, the reason for the amendment, the goals it seeks to achieve, and the remedy it seeks.

Starting with the language of the text, the majority determines that the language in Marsy’s law does not include corporate entities or governmental bodies in its definition and does not define the term “person.”

Defining “Person”

After looking at the definition of “person” in Black’s Law Dictionary and Webster’s Third New International Dictionary (Justice Kennedy’s favorite, which she again turns to in her separate concurrence) French concludes that the ordinary meaning of the word “person” as the voters would have understood it in 2017 includes both a natural person and a partnership or corporation.

Dual Functions of Municipal Corporations

In contrast to a private corporation, a municipal corporation is a political subdivision with local police powers. It performs both proprietary and governmental functions. Here, in responding to a crime, it was operating in its governmental capacity.

From this the majority concludes that none of the definitions suggest that the word “person” includes a political subdivision or municipal corporation, but even if they did, the term would appear to include a private, not a public corporation.

“The normal and ordinary use of the word ‘person’ suggests that Ohio voters would not have understood that term to include a public corporation,” French wrote, adding that nothing in the text of Marsy’s Law suggests that the voters intended a municipal corporation to quality as a victim (a point Justice DeWine made clear in his questioning at oral argument). Marsy’s Law deals with private rights, which is incompatible with including public corporations as victims, and it is a legal maxim that voters are presumed to be aware of existing Ohio law. The majority concludes that the voters did not intend for a municipal corporation to quality as a victim under Marsy’s Law.

Placing Marsy’s Law in Context

The context surrounding the enactment of Marsy’s Law underpins the majority’s holding on this point. Marsy’s Law was part of a national victims’ rights movement seeking to give the victims of crimes constitutional rights equal to those of the accused. The ballot language spoke of rights that are mostly private and individual in nature.

“There is simply nothing surrounding the national Marsy’s Law movement or the Ohio Marsy’s Law initiative that suggests that the voters understood and intended that a public corporation is a victim,” French wrote.

Case Holding

A municipal corporation does not quality as a victim under Article I, Section 10a of the Ohio Constitution and is not entitled to restitution under that section.  The Court also declines to consider whether a city could receive restitution under some other provision of Oho law. 

Justice Kennedy’s Concurrence in Judgment Only

Justice Kennedy agrees that Marsy’s Law does not give a municipal corporation the right to receive restitution for expenses incurred in responding to an emergency call. But she thinks the majority went too far with its categorical ban. She does not think this case presents the question of whether a municipal corporation is entitled to restitution if harmed in relation to a nongovernmental proprietary function and would not decide that in this case.

Justice Donnelly also concurred in judgment only but did not join Justice Kennedy’s opinion.

Case Disposition

The judgment of the Second District is affirmed

Trial Court Judge (reversed)

Kettering Municipal Court Judge James F. Long

Second District Court of Appeals (affirmed)

Opinion written by Judge Jeffery M. Welbaum, joined by Judges Mary E. Donovan and Michael T. Hall

Concluding Observations

I thought the Court would limit its holding to not allowing cities to recover restitution when performing governmental functions (Justice Kennedy’s position) but am glad it didn’t.  I have enough trouble with corporations being persons, let alone victims.

Here’s what I wrote after argument:

“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.

“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.”