HONORABLE CHIEF JUSTICE OF THE SUPREME COURT OF OHIO

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HONORABLE CHIEF JUSTICE OF THE SUPREME COURT OF OHIO Powered By Docstoc
					Supreme Court of Ohio
Date: 05/06/08
Case Number: 2007-1462
                                 -1-
NEXT CASE IS 07-1462. STATE OF OHIO VS. CHARLES BARTHOLOMEW.
MS. OLSON?

>> GOOD MORNING, MR. CHIEF JUSTICE AND MAY IT PLEASE THE COURT. I
AM KIM OLSON, HERE ON BEHALF OF THE STATE OF OHIO. I WOULD LIKE
TO RESERVE THREE MINUTES FOR REBUTTAL. THE GENERAL ASSEMBLY
CREATED THE CRIME VICTIM'S FUND TO COMPENSATE VICTIMS QUICKLY,
WHEN THEY NEED IT MOST. TO HELP KEEP THE FUND SOLVENT, THE
VICTIM'S FUND MAY RECEIVE RESTITUTION FROM DEFENDANTS. TWO
STATUTORY PROVISIONS WORK IN HARMONY TO ALLOW A TRIAL COURT
TO ORDER A DEFENDANT TO PAY RESTITUTION TO THE VICTIM'S FUND.
FIRST, THE RESTITUTION STATUTE AUTHORIZES A TRIAL COURT TO
ORDER A DEFENDANT TO PAY RESTITUTION TO AN AGENCY. AND
SECOND, THE REPAYMENT PROVISION FOR THE VICTIM'S FUND
EXPLICITLY STATES THAT IT IS AN ELIGIBLE RECIPIENT OF RESTITUTION.
THE PROCESS THE GENERAL ASSEMBLY INTENDED WORKED HERE. AFTER
MR. BARTHOLOMEW RAPED HIS DAUGHTER, THE VICTIM'S FUND STEPPED
IN AND PROVIDED COUNSELING COSTS. AS PART OF HIS SENTENCE,
MR. BARTHOLOMEW WAS THEN ORDERED TO PAY RESTITUTION TO THE
VICTIM'S FUND TO REIMBURSE THE FUND FOR COVERING THE
COUNSELING COSTS. MR. BARTHOLOMEW WOULD REQUIRE THE STATE TO
INITIATE A SEPARATE CIVIL PROCEEDING IN EACH AND EVERY CASE.
SUCH A REQUIREMENT CONTRADICTS THE PLAN MEANING OF THE
RESTITUTION STATUTE AND THE REPAYMENT PROVISION. IT ALSO
WASTES STATE AND JUDICIAL RESOURCES. FIRST, THE RESTITUTION
STATE RC 292918 A 1 EXPRESSLY AUTHORIZED THAT STATE AGENCIES,
SUCH AS THE VICTIM'S FUND MAY RECEIVE RESTITUTION PAYMENTS. THE
STATUTE PROVIDES THAT THE COURT SHALL ORDER THE RESTITUTION BE
MADE TO THE VICTIM IN OPEN COURT, TO THE ADULT PROBATION
OFFICER THAT SERVES THE COUNTY ON BEHALF OF THE VICTIM, TO THE
CLERK OF COURTS OR TO AN AGENCY DESIGNATED BY THE COURT. HERE,
THE VICTIM'S FUND IS SUCH AN AGENCY DESIGNATED BY THE COURT.
THIS COURT HAS PREVIOUSLY MADE CLEAR THAT THE ATTORNEY
GENERAL'S OFFICE IS AN AGENCY AND IS AN ARM OF THE ATTORNEY'S
GENERAL'S OFFICE, SO TOO IS THE VICTIM'S FUND. MR. BARTHOLOMEW
ATTEMPTS TO AVOID THE OPERATIVE LANGUAGE OF THE RESTITUTION
STATUTE BY RELYING ON STATE V CRISISER. IN THAT CASE, THE COURT IS
INTERPRETING A PRIOR VERSION OF THE STATUTE. IT WAS NOT
PERMITTING A TRIAL COURT TO ORDER RESTITUTION TO AN AGENCY.
SECOND, THE COURT CONCLUDED IN CRISISER THAT RESTITUTION MAY
NOT BE PAID TO A THIRD -- IT MAY BE ORDERED TO A PRIVATE
INSURANCE CARRIER. BUT THAT WAS UNDER THE PREVIOUS LANGUAGE.
IT WAS NOT INTERPRETING WHAT PERMITS THE TRIAL COURT TO ORDER
Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
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Supreme Court of Ohio
Date: 05/06/08
Case Number: 2007-1462
                                -2-
RESTITUTION TO THE VICTIM'S FUND. ALTHOUGH THE STATE CONTENDS
THAT THE RESTITUTION STATUTE STANDING ALLOW AUTHORIZES A
COURT TO DIRECT RESTITUTION PAYMENTS TO THE VICTIM'S FUND, WE
ALSO RELY UPON THE REPAYMENT PROVISION FOR THE VICTIM'S FUND
FOUND IN RC 274372 E. THAT STATUTE MAKES IT SPECIFICALLY CLEAR
THAT THE VICTIM'S FUND IS AN ELIGIBLE RECIPIENT OF RESTITUTION
PAYMENTS. THIS STATUTE INDICATES THE GENERAL ASSEMBLY'S INTENT
THAT THE VICTIM'S FUND BE REIMBURSED FOR OUTLAYS TO VICTIMS.
FOR BARTHOLOMEW TO WIN HERE, THE COURT MUST CONCLUDE THE
GENERAL ASSEMBLY'S INTENT THAT RESTITUTION MAY BE PAID TO THE
VICTIM'S FUND MEANS NOTHING. YOU MUST IGNORE THE LANGUAGE OF
THE REPAYMENT PROVISION --

>> COUNSEL, IF THE APPELLEE HERE IS OF THE MIND THAT THE VICTIM'S --
OF CRIME FUND IS NOT THE APPROPRIATE RECIPIENT FOR RESTITUTION, IS
THERE AN ARGUMENT THAT THE VICTIM THEMSELVES IS THE
APPROPRIATE, EVEN AFTER THE VICTIM HAS RECEIVED COMPENSATION
OR REIMBURSEMENT THROUGH THE CRIME FUND? IS IT AN UNATENABLE
SITUATION SET UP?

>> WHAT WILL HAPPEN IS IF THE CRIME VICTIM FUND STEPS IN AND
REIMBURSES THE VICTIM FOR COSTS THAT IS INCURRED AND THEN
ORDERED TO PAY THE RESTITUTION TO THE VICTIM. THE VICTIM'S FUND
HAS A RIGHT TO SUBROGATION TO GO AFTER THE VICTIM. THAT IS
CONTRARY TO THE INTENT OF THE VICTIM'S FUND. IT WAS CREATED TO
HELP VICTIMS. WE DO NOT WANT TO SET UP AN ADVERSARIAL
RELATIONSHIP BETWEEN THE STATE AND THE VICTIM.

>> AND WHO -- WHAT AGENCY OR DOES THE COURT DETERMINE THE
AMOUNT OF RESTITUTION?

>> THE ATTORNEY GENERAL'S OFFICE. I'M SORRY. WHO DETERMINES THE
AMOUNT OF RESTITUTION? THAT IS IN THE TRIAL COURT'S DISCRETION. IF
THE VICTIM'S FUND HAS ALREADY COVERED COSTS FOR THE VICTIM, THE
VICTIM'S FUND WILL SUBMIT IT TO A TRIAL COURT SHOWING THE COSTS
COVERED IN THE CASE. IT IS IN THE TRIAL COURT'S DISCRETION.

>> IT IS 400 SOME DOLLARS.

>> THAT HAS NEVER BEEN DISPUTED. THE TRIAL COURT ORDERED THE
RESTITUTION PAYMENT BE MADE TO THE VICTIM'S FUND BECAUSE THE
VICTIM'S FUND PAID THE COST FOR THE VICTIM SO SHE COULD RECEIVE
THE COST IMMEDIATELY.
Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
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Supreme Court of Ohio
Date: 05/06/08
Case Number: 2007-1462
                                                 -3-

>> FIRST OF ALL, THERE IS A FORM TO CONTEST THE AMOUNT OF
RESTITUTION. THAT IS THE TRIAL COURT AND THE PERPETRATOR HAS
THE ABILITY TO DO THAT?

>> YES.

>> ONCE THE COURT COMES UP WITH THE AMOUNT CERTAIN FOR
RESTITUTION, THEN IT IS MERELY A QUESTION OF WHO IS THE RECIPIENT
IN THE EVENT THE VICTIMS OF CRIME FUND HAS PAID MONEY, CORRECT?
YES. OF COURSE, THE OFFENDER COULD CHALLENGE THE AMOUNT OF
RESTITUTION, BECAUSE THERE DOES HAVE TO BE AN ECONOMIC LOSS. AN
OFFENDER COULD CHALLENGE THAT IN SOME WAY.

>> DON'T THEY CHALLENGE THAT WITH THE TRIAL COURT? THAT IS THEIR
OPPORTUNITY.

>> YES, THEY DO. THERE IS NO QUESTION THE $426 WAS PAID FOR
COUNSELING COSTS. THE COSTS WERE REIMBURSED BY THE VICTIM'S
FUND.

>> IF THE TRIAL COURT, SAY, ORDERED 400. AND THE VICTIM'S OF CRIME
FUND HAD ORDERED 600, THE VICTIM'S OF CRIME FUND WOULD ONLY GET
REIMBURSEMENT FOR 400 THEN UNDER THAT SCENARIO?

>> YES.

>> GO AHEAD.

>> AS A PRACTICAL MATTER, DOES THE CRIME VICTIM'S FUND
REIMBURSE VICTIMS BEFORE THE DATE OF SENTENCING, GENERALLY
SPEAKING?

>> THE IDEA BEHIND THE CRIME VICTIM'S FUND IS THEY CAN PROVIDE
IMMEDIATE RELIEF. IN THIS CASE, THERE WAS ACTUALLY NOT. THERE
WAS ONLY A FOUR-MONTH SPAN BETWEEN THE OFFENSE AND WHEN THE
OFFENDER PLEADED GUILTY. NORMALLY, THERE IS GREATER TIME SPAN.
THE IDEA THAT THE VICTIM'S FUND CAN COME IN AND PREVENT DIRE
FINANCIAL SITUATIONS. THAT IS THE WHOLE POINT BEHIND THE FUND.

>> AND THIS AMOUNT WAS FOR COUNSELING FEES, AS I UNDERSTAND?

>> YES YOUR HONOR.
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Supreme Court of Ohio
Date: 05/06/08
Case Number: 2007-1462
                                                 -4-

>> IF COUNSELING WERE TO CONTINUE ON, HOW WOULD THAT WORK? WE
NORMALLY KNOW THAT RESTITUTION IS ORDERED AS A PART OF THE
SENTENCE. AND THE COURT THEN WOULD DETERMINE AN AMOUNT.
WHAT HAPPENS IF, LET'S SAY, THE COUNSELING NEEDED TO CONTINUE.
YOU KNOW, THE CRIME VICTIM'S FUND HAD PAID A PORTION. WOULD
THERE BE AN APPORTIONMENT, YOU SEE? HOW WOULD THAT WORK, IN
YOUR EXPERIENCE.

>> SAY IN THIS SITUATION, AFTER SENTENCING, COUNSELING
CONTINUED. THE VICTIM THEN COULD APPLY FOR ADDITIONAL FUNDS
FROM THE VICTIM'S FUND. AND THEN THE VICTIM'S FUND COULD
CONSIDER WHETHER OR NOT TO PAY ADDITIONAL COUNSELING COSTS.
AT THAT POINT, BECAUSE IT IS AFTER THE RESTITUTION PHASE, THE
SENTENCING PHASE, THEN THE FUND COULD SEEK REIMBURSEMENT
THROUGH A CIVIL PROCEEDING. I MEAN, BECAUSE THERE IS NO WAY TO
GO BACK AND CHANGE THE RESTITUTION ORDER. AT THAT POINT, YES, IT
WOULD HAVE TO BE A CIVIL PROCEEDING.

>> THANK YOU.

>> WHICH SECTION OF THE CODE DO YOU RELY ON TO SAY THAT THE
REPARATIONS FUND IS A PART OF THE ATTORNEY GENERAL'S OFFICE,
THEREBY MAKING IT YOUR AGENCY ARGUMENT? WHICH SECTION OF THE
CODE DOES THAT?

>> SECTION R C 11901 A 1 HAS A BROAD DEFINITION OF AN AGENCY. IT
SAYS THAT AN AGENCY GOVERNS THE FUNCTIONS OF ANY
ADMINISTRATIVE --

>> I KNOW THAT. THE QUESTION IS, WHAT STATUTE MAKES THE
PREPARATIONS FUND A PART OF THE ATTORNEY GENERAL'S OFFICE? YOU
HAVE TO GET THERE TO MAKE THE AGENCY ARGUMENT.

>> RC 274372 IS THE STATUTE THAT GOVERNS THE PREPARATIONS FUND.
IT WEIGHS OUT THAT THE FUND IS GOVERNED BY THE ATTORNEY
GENERAL'S OFFICE. IT IS PART OF IT. IT LAYS OUT THE WHOLE SYSTEM.
BECAUSE THE FUND IS ACTUALLY GOVERNED BY -- IS OPERATED BY THE
ATTORNEY GENERAL'S OFFICE. I WOULD LIKE NOW TO ALSO TURN TO THE
PURPOSE OF RESTITUTION. MR. BARTHOLOMEW WOULD REQUIRE THE
FUND TO SIMPLY INITIATE CIVIL PROCEEDINGS IN EACH AND EVERY
CASE. RESTITUTION IS NOT ONLY ABOUT MONEY. RESTITUTION ALSO
PLAYS AN IMPORTANT ROLE IN DETERRING, REHABILITATING, AND
Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
Date: 05/06/08
Case Number: 2007-1462
                                -5-
BRINGING JUSTICE TO VICTIMS. RESTITUTION FORCES THE DEFENDANT
TO CONFRONT IN CONCRETE TERM, THE HARM HE CAUSED. PAYING FOR
THE COUNSELING OF HIS DAUGHTER FORCES HIM TO FACE THE PAIN HE
HAS CAUSED. IT ALLOWS THE VICTIM'S FUND TO REPLENISH ACCIDENTS
MORE QUICKLY TO CONTINUE TO PROVIDE ASSISTANCE TO OTHER
VICTIMS. IF THERE ARE NO FURTHER QUESTIONS I WOULD LIKE TO --

>> I HAVE ONE AS A PRACTICAL AND PROBABLY DOESN'T HAVE A LOT OF
BEARING ON HERE. HOW OFTEN DO DEFENDANTS ACTUALLY REIMBURSE
THE FUND?

>> WELL, MORE OFTEN THAN NOT. SO THE VICTIM'S FUND COVERS
VIOLENT CRIMES, HIT-AND-RUNS, AND DRUNK DRIVING. TO BE HONEST,
THE MAJORITY OF OUTLAYS IT PROVIDES ARE NOT REIMBURSES.
RESTITUTION DOES PAY A SIGNIFICANT AMOUNT OF MONEY INTO THE
VICTIM'S FUND. IN 2007, IT WAS ROUGHLY 200000 THERE. THERE ARE 300
PENDING RESTITUTIONS THAT TOTAL 1.5 MILLION. TELL HAVE A
FINANCIAL IMPACT IF THE RESTITUTION CAN NO LONGER BE PAID TO THE
VICTIM'S FUND. THANK YOU.

>> THANK YOU MS. OLSON. MR. SPIEGEL?

>> CHIEF JUSTICE AND THE COURT, GOOD MORNING. I'M HERE ON BEHALF
OF THE APPELLEE, MR. BARTHOLOMEW. I THINK THE INTENTION IS WHAT
WAS THE INTENTION OF THE LEGISLATURE WHEN THEY REPEALED THE
OPERATIVE LANGUAGE OUT OF THE REVISED CODE, 292918. THE
LANGUAGE THEY REPEALED WAS QUOTED IN THE APPELLEE'S BRIEF AT
PAGE 6. IT WAS A FOOTNOTE FROM THE DIFFIAN CASE. IF
REIMBURSEMENT IS REQUIRED, THE REIMBURSEMENT SHALL BE MADE
TO ANY GOVERNMENT AGENCY FIRST. I BELIEVE THAT THAT SORT OF
SUGGESTS THAT BY TAKING OUT THAT LANGUAGE, THAT WAS THE
INTENTION OF THE GENERAL ASSEMBLY TO -- TO INCLUDE THE VICTIM'S
OF CRIME FUND AMONG THIRD PARTIES GENERALLY.

>> COUNSEL, JUST AS A PRACTICAL QUESTION, WHAT DIFFERENCE DOES
IT MAKE TO YOUR CLIENT WHETHER HE PAYS THE 4 HUNDRED SOME
DOLLARS, IF HE HAS THE CAPACITY TO DO SO, I DON'T KNOW THE
ANSWER TO THAT -- TO THE VICTIM OR TO THE FUND, WHAT DIFFERENCE
DOES IT MAKE?

>> IT WOULDN'T MAKE ANY DIFFERENCE TO MY CLIENT WHETHER IT IS
DOES CIVILALLY OR CRIMINALLY. I THINK IT MAKES A BIG DIFFERENCE
TO THE WAY THE LAW IS PROCESSED. THESE ARE NOT ALWAYS THE
Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
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Supreme Court of Ohio
Date: 05/06/08
Case Number: 2007-1462
                              -6-
KINDS OF EASY QUESTIONS THAT CAN BE JUST RESOLVED IN A MOMENT.
THERE ARE TIMES WHEN THE AMOUNT OF RESTITUTION IS CONFLICTING -
-

>> COUNSEL, DOESN'T THE TRIAL COURT RESOLVE THAT AT THE TIME OF
SENTENCING OR AT LEAST PRIOR TO SENTENCING IN THE AMOUNT OF
RESTITUTION? THEN THEY CAN HEAR EVIDENCE PUT ON BY THE
DEFENDANT ON TO THE VALUE OF RESTITUTION? IF THEY CONTEST IT?

>> YES, THEY CAN.

>> IT IS NOT AN AMOUNT ARRIVED ON IN A MOMENT. THERE IS A PROCESS
TO REACH WHAT THE APPROPRIATE RESTITUTION AMOUNT IS.

>> WELL, I SEE SOME CIRCUMSTANCES, SOME OF THE CASES VISINE,
WHERE THE RESTITUTION ISSUE WAS MORE COMPLICATED. I THINK IT
WAS --

>> WHERE WOULD IT BE SORTED OUT IF IT WAS COMPLICATED.

>> I THINK THERE SORTED OUT IN THE CIVIL COURT. THEN A MUCH
BROADER PLAYING FIELD TO SORT IT OUT THERE. IF IT IS COMPLICATED.
AN EXAMPLE OF COMPLICATIONS WAS IN THE DIFFIAN CASE A CITED.
THAT MAY BE ONE OF THE REASONS WHY THE THIRD APPELLATE
DISTRICT CHOSE TO INTERPRET THE STATUTE THE WAY THEY DID.
BECAUSE IN THE DIFFIAN CASE, I THINK THE -- THERE IS QUESTIONS AS TO
WHETHER SOME RING THAT WAS LOST IN THE COURSE OF THE INCIDENT
OF THE EVER RECOVERED OR NOT. WHETHER THAT WAS RECOVERED OR
NOT MADE A BIG DIFFERENCE TO THE RESTITUTION. I DON'T SEE
CRIMINAL CASE AS REALLY BEING HELD OPEN FOR A LONG PERIOD OF
TIME IN WHICH TO LITIGATE QUESTIONS AS TO RESTITUTION,
QUESTIONS --

>> YOU WOULD LIKE TO HAVE A JURY TRIAL AND HAVE ALL THE
ATTENDING CIVIL RULES OF EVIDENCE, ET CETERA, A SEPARATE TOTAL
CIVIL CASE?

>> I THINK THAT THAT WOULD BE PREFERABLE TO HAVE A CIVIL CASE,
RATHER THAN THE CRIMINAL CASE. THE CRIMINAL COURTS ARE BOGGED
DOWN RIGHT NOW WITH MANY -- IS THERE SOME SORT OF EVIDENCE
THAT YOU SUPPORT THAT WITH? THE FACT THAT RESTITUTION,
ORDERING IT IN A CRIMINAL CASE IS BOGGING DOWN THE COMMON
PLEAS COURTS?
Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
Date: 05/06/08
Case Number: 2007-1462
                                                 -7-

>> I COULD SEE WHERE IT COULD. I MEAN, THE NUMBER OF CASES THAT
HAVE BEEN REPORTED, WHERE THERE HAS BEEN LITIGATION AND GOING
UP ON APPEAL ON THE QUESTIONS OF RESTITUTION. FOR INSTANCE, THE
CRISISER CASE WAS ONE ITSELF WHERE IT WAS UP TWICE BEFORE IT
REACHED THE SUPREME COURT. IT WAS UP TO THE COURT OF APPEALS
TWO OR THREE TIMES, TRYING TO RESOLVE THE QUESTION AS TO WHAT
IS THE APPROPRIATE AMOUNT OF RESTITUTION.

>> ARE YOU BASICALLY SAYING THAT -- LET'S TAKE OUT THE RIGHT OF
THE FUND TO RECEIVE THE MONIES. IF YOU HAVE A COMPLICATED
RESTITUTION ISSUE, ARE YOU SAYING THE JUDGE SHOULD NOT HAVE THE
AUTHORITY IN A CRIMINAL SETTING TO SORT IT OUT AND THE VICTIM
HAS TO PURSUE IT CIVILLY ON THEIR OWN?

>> NOT -- DOESN'T HAVE THE AUTHORITY, BUT RATHER, IT WOULD BE A
PLACE FOR THE COURT TO EXERCISE ITS DISCRETION NOT TO.

>> SO THE COURT CAN SAY, THIS IS TOO COMPLICATED, SO VICTIM, I'M
NOT GOING TO ORDER RESTITUTION, YOU GO SUE CIVILLY TO GET IT. IS
THAT WHAT YOU'RE SOLUTION IS?

>> I WOULD SAY YES IN THE REALLY COMPLICATED CASE.

>> SO WHY DOES THE VICTIM BEAR THE BURDEN OF PROVING THE
DAMAGES DONE TO THEM WHEN THEY HAVE BEEN A VICTIM?

>> THE BURDEN OF PROOF IS GOING TO BE LIGHT, I BELIEVE BECAUSE I
BELIEVE THERE IS A PROVISION OF LAW WHERE THE CONVICTION IN THE
CRIMINAL CASE CAN THEN BE USED AS EVIDENCE IN THE CIVIL CASE.

>> SO IS THAT THE BASIS OF SAYING THAT THE FUND, IN YOUR OPINION,
SHOULD NOT GET THESIS MONIES BECAUSE THEY SHOULD BE ALL
CIVILLY BROUGHT OR JUST THE FINDS SHOULD GET MONEY THAT ARE
SIMPLE IN RESTITUTION?

>> I THINK IF WE HAVE A VERY CLEAR-CUT ECONOMIC LOSS, NO
QUESTION THAT THERE WAS $1,000 STOLEN FROM THE VICTIM. THAT IS
THE KIND OF QUESTION THAT PERHAPS RESTITUTION COULD BE USED TO
APPLY TO.



Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
Date: 05/06/08
Case Number: 2007-1462
                               -8-
>> THEN IF THE COURT ORDERS THAT RESTITUTION BECAUSE THE LOSS IS
CLEAR AND UNDISPUTED, CAN THAT BE ORDERED PAID TO THE
PREPARATIONS FUND IF THEY HAVE ALREADY REIMBURSED THE VICTIM?

>> I'M NOT SURE I FOLLOWED YOUR QUESTION.

>> YOU HAVE $1,000 LOSS, CLEAR RESTITUTION, PREPARATIONS FUND HAS
ALREADY PAID THAT TO THE VICTIM. WHAT HAPPENS TO THE -- DOES THE
TRIAL COURT THEN SAY YOU PAY THAT BACK TO THE PREPARATIONS
FUND? OR DOES THE DEFENDANT GET OFF SCOT-FREE BECAUSE THE
PREPARATIONS FUND PAID IT.

>> I DON'T THINK THE DEFENDANT EVER GETS OFF SCOT-FREE. I THINK HE
SHOULD RECEIVE AN ORDER AGAINST HIM FOR PREPARATIONS AT ANY
RATE, CIVILLY, IN A CIVIL PROCEEDING. AS TO GETTING OFF --

>> SO -- HE ORDERS -- THE JUDGE ORDERS RESTITUTION TO THE VICTIM?

>> YES.

>> OKAY. THE DEFENDANT -- DOES THE VICTIM STILL HAVE TO SUE
CIVILLY TO GET THAT THOUSAND?

>> I WOULD SAY PROBABLY NOT. DEPENDING UPON WHETHER OR NOT
THE COURT IS GOING TO ENFORCE IT OR NOT. THAT IS THE NEXT
QUESTION. BECAUSE THE NEXT QUESTION WOULD BE IS THE CRIMINAL
COURT GOING TO BE THE ONE TO ENFORCE THESIS ORDERS BY MAKING
THE DEFENDANT PAY UP OR NOT.

>> LET'S PUT ASIDE THE ENFORCEMENT ISSUE. JUDGE ORDERS $1,000,
CLEAR-CUT, NO DISPUTE. THE VICTIM'S CRIME FUND HAS ALREADY
REIMBURSED THE VICTIM FOR THAT. SAY THE DEFENDANT HAS THE
MONEY. WHO DOES HE PAY IT TO?

>> I BELIEVE HE WOULD BE ABLE TO PAY IT TO THE CRIME FUND. BUT THE
REASON IS BECAUSE HE WOULD BE ORDERED TO CIVILLY, ONE WAY OR
THE OTHER IN ADDITION TO A CRIMINAL ONE.

>> YOU STILL KEEP PUTTING A CIVIL PROCEDURE BACK IN HERE, EVEN
THOUGH THE AMOUNT IS ORDERED BY THE TRIAL COURT, CLEAR-CUT,
YOU WOULD FORCE THAT INTO A CIVIL JUDGMENT AS WELL.

>> I BELIEVE SO.
Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
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Supreme Court of Ohio
Date: 05/06/08
Case Number: 2007-1462
                                                 -9-

>> DOESN'T YOUR POSITION IGNORE THE FACT THAT RESTITUTION IS
CONSIDERED A CRIMINAL SANCTION? IT IS PART OF THE PUNISHMENT
ORDERED FOR A CRIME?

>> I APPRECIATE THAT. THAT IS TRUE. THAT IS PART OF THE CODE.
WHETHER IT IS WORKABLE OR NOT I THINK IS ONE OF THE THINGS THAT
THE GENERAL ASSEMBLY HAD TO CONSIDER WHEN THEY DECIDED THE
QUESTION OF WHETHER OR NOT TO CONSIDER WITH RESTITUTION TO
THIRD PARTIES OR NOT.

>> THE NEW STATUTE DOES SAY TO AN AGENCY DETERMINED BY THE
COURT. SO WHEN THE COURT IMPOSES THE PUNISHMENT OF RESTITUTION
AND ORDERS IT PAID TO A SPECIFIC AGENCY, SUCH AS THE CRIME FUND,
IT IS IMPOSING PART OF THE SANCTION FOR THE CRIME.

>> ONE OF THE QUESTIONS THAT I HAVE IS WHETHER, WHEN THE CODE
USES THIS LANGUAGE, WHETHER THEY'RE TALKING IN TERMS OF A
BOOKKEEPING FUNCTION OR NOT. THEY USE THE LANGUAGE THAT APPLY
IT TO -- PAY IT TO THE VICTIM OR THE ADULT PROBATION OR THE CLERK
OF COURT'S OFFICE OR ANY OTHER AGENCY. I BELIEVE THAT THE
VICTIMS OF CRIME FUND IS RELYING ON THE ANY OTHER AGENCY
LANGUAGE. THE "ANY OTHER AGENCY" LANGUAGE WAS THERE BEFORE
THE STATUTE.

>> IT SAYS THAT THE FUND SHALL BE CONSIDERED A RECIPIENT FOR
RESTITUTION.

>> YES, YES. THERE WAS ALSO THERE BEFORE AND AFTER THE
AMENDMENT. THE QUESTION BOILS DOWN TO WHAT DOES THE EFFECT, IF
ANY, THAT THE AMENDMENT HAD.

>> COUNSEL, HERE IS A SCENARIO I WOULD LIKE TO YOU COMMENT ON. IF
THE TRIAL COURT PUTS THE DEFENDANT ON PROBATION FOR 18 MONTHS,
TWO YEARS, WHATEVER AND ORDERS RESTITUTION AS A CONDITION OF
PROBATION. YOU SAY THERE IS A NECESSITY FOR A CIVIL CASE TO BE
INITIATED. SAY THAT CIVIL CASE IS NOT DISPOSED OF IN AN AMOUNT
CERTAIN DETERMINED BY A COURT EITHER WITH OR WITHOUT A JURY
WITHIN 18 MONTHS, AS IS SOMETIMES THE CASE. HOW DOES THAT AFFECT
THE PROBATION OF THE DEFENDANT.

>> IF THE DEFENDANT HAS NOT MADE ATTEMPTS TO PAY.

Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
Date: 05/06/08
Case Number: 2007-1462
                               - 10 -
>> HOW DOES HE KNOW THE AMOUNT? IF YOU SAY THERE HAS TO BE A
PARALLEL CIVIL CASE ENACTED IN VAGARIES AND CUMBERSOME
NATURE OF THOSE PROCEEDINGS AND CLEAR-CUT PROBATION FOR
AMOUNT TIME CERTAIN, IT IS ALL CONTINGENT UPON RESTITUTION AS
BEING A FACTOR.

>> IT SEEMS TO ME IF HE HASN'T MADE ANY EFFORTS TO PAY, THAT
WITHOUT A PROBLEM OF IMPRISONMENT FOR DEBT, THE COURT COULD
PERHAPS EXTEND HIS PROBATION AND SAY YOU STILL HAVE TO PAY.

>> ISN'T THAT AN ADDITIONAL BURDEN OF THE SYSTEM TO HAVE
SOMEONE ON PROBATION THAT COULD HAVE GOTTEN OFF PROBATION IF
HE WOULD HAVE REACHED INTO HIS POCKET AND YOU KNOW, IF HE
WOULD HAVE REACHED INTO HIS POCKET.

>> IF HE COULD HAVE GOTTEN OFF, I THINK HE HAS VIOLATED THE
RESTITUTION ORDER, YES. YES, HE COULD BE PUNISHED THEN, IF THAT IS
THE CASE. THE OTHER QUESTION I HAVE IS WHETHER OR NOT IF WE HAVE
SEVERAL DIFFERENT ENTITIES COMPETING FOR THE MONEY OF THESE
OFFENDERS, IF WE HAVE A CLAIM FOR CHILD SUPPORT AND HAVE A
CLAIM FOR COURT COSTS AND CLAIM FOR RESTITUTION, MAYBE SOME
OTHER CLAIMS, MAYBE THERE SHOULD BE A CIVIL PROCEEDING TO
DECIDE WHICH ONE OF THESE TAKES PRIORITY. THE ADMINISTRATIVE
CODE SORT OF SUGGESTS THAT THE BUREAU, THE PRISON, THE
DEPARTMENT OF REHABILITATION AND CORRECTIONS, THEY'RE DO IT
ON -- THEY'RE DOING EACH JUDGMENT IN ORDER UNTIL AND
COMPLETELY UNTIL SUCH TIME AS IT IS OTHERWISE ORDERED BY AT
COURT OF COMPETENT JURISDICTION. I WOULD SAY IT WOULD BE GOOD
IF THE CIVIL COURTS COULD BE THE ONES THAT ACTUALLY MAKE THE
DETERMINATION AS TO WHO GETS THE PRIORITY WHETHER OR NOT THE
MONEY GOES FOR CHILD SUPPORT OR GOES FOR ANY OTHER -- OR FOR
THE COURT COSTS. IF THERE IS NO FURTHER QUESTIONS?

>> THANK YOU, MR. SPIEGEL. MS. OLSON, YOU SAVED FOUR MINUTES OF
OUR TIME.

>> THANK YOU, YOUR HONOR. MR. SPIEGEL IS ARGUING THAT THE
CRIMINAL COURTS ARE BOGGED DOWN. HE'S ASKING FOR TWO
PROCEEDINGS IN EVERY CASE. THE JUDICIARY WOULD BE STRESSED
MORE IF WE ACCEPT WHAT HE IS ARGUING FOR. IT IS TRUE WHETHER THE
RESTITUTION GOES TO A VICTIM OR THE VICTIM'S FUND. HE'S ARGUING
AGAINST RESTITUTION. THE COMPLICATED PART IS NOT TO SAY OH, THE
VICTIM'S FUND FRONTED THE MONEY HERE. THE MORE COMPLICATED
Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .
Supreme Court of Ohio
Date: 05/06/08
Case Number: 2007-1462
                               - 11 -
ASPECT IS DETERMINING ECONOMIC LOSS. THAT HAPPENS REGARDLESS.
AGAIN, I WOULD LIKE TO TURN BACK TO THE RESTITUTION STATUTE AND
THE REPAYMENT PROVISION. WORKING TOGETHER, IT IS CLEAR THE
LEGISLATURE INTENDED THE VICTIM'S FUND TO COMPENSATE VICTIM'S
QUICKLY AND THEN BE ABLE TO RECEIVE MONEY FROM OFFENDERS SO IT
COULD REMAIN SOLVENT. I ASK YOU TO REVERSE THE THIRD DISTRICT
DECISION. IF THERE ARE NO FURTHER QUESTIONS?

>> THANK YOU, MS. OLSON. THE CASE IS SUBMITTED. YOU WILL BE
ADVISED OF OUR OPINION.




Transcripts of oral arguments before the Supreme Court of Ohio are produced by National Captioning
Institute, which has contracted with Ohio Government Telecommunications to provide closed-captioning of
all broadcasts of Supreme Court oral arguments since January 10, 2006. These text files are not official
records of the Supreme Court, and the Court does not vouch for their accuracy. Video of all oral
arguments at the Court since March 2004 is available at the Court’s Web site,
www.supremecourtofohio.gov .

				
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