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Ohio Supreme Court hears challenge to crime victims’ access to civil justice

Wednesday, November 13, 2019

Will crime victims lose their long-established right to seek justice in civil courts? The Buddenberg v. Weisdack case pits crime victims and civil-rights advocates against insurance companies and criminal- and employer-defense lawyers.

Will crime victims lose their long-established right to seek justice in civil courts?

That’s the overarching issue argued before the Ohio Supreme Court by Chandra Law’s managing partner Subodh Chandra today (VIDEO of the oral argument is here) on behalf of crime victims, in a case with broad implications for access to civil justice. The case pits crime victims and civil-rights advocates against insurance companies and criminal- and employer-defense lawyers.

At issue is whether crime victims will lose their ability to file civil suits to recover damages for harm done to them by crimes unless the perpetrators who have injured them have already been tried and convicted.

Requiring convictions to file lawsuits would effectively strip most crime victims of their current access to civil courts, say civil-rights advocates. Most crimes are never prosecuted, and those that are may take years to be resolved. That's why the legislature passed laws enabling access to civil courts. If courts now change the way they interpret those laws, many plaintiffs will lose their only path to legal redress, civil-rights and crime victims’ advocates say.

“A misreading of the law that requires convictions would have disastrous consequences for crime victims,” says Subodh Chandra, attorney for a whistleblower at the Geauga County Health District who alleges she was retaliated against by her supervisor. Rebecca Buddenberg also alleges her supervisor engaged in the criminal act of falsifying public documents. Chandra adds, “Instead of protecting their access to courts, as the legislature clearly meant to do, it would build a heavily protected legal wall to shield perpetrators, the exact opposite of what the legislature intended.”

The case arises from a report that fiscal coordinator Rebecca Buddenberg filed in October 2016 against her boss, then-Geauga County Health Commissioner Robert Weisdack, alleging unequal pay practices and potential ethical misconduct in steering contracts to himself. Buddenberg claimed that after the report, Weisdack started “immediately and relentlessly” to retaliate against her. Buddenberg says that Weisdack changed her previously negotiated work hours, making it impossible to care for her cancer-stricken grandson and complete her college degree. She says Weisdack filed false written disciplinary accusations to intimidate her to drop her EEOC charge, and then, based on those false allegations, he suspended and demoted her, reduced her pay, and assigned her to a hostile supervisor.

The end result, Ms. Buddenberg says, was that she was “constructively discharged.”

In March 2018, Ms. Buddenberg sued Weisdack and several other defendants in federal court, including the district's outside lawyer Jim Budzik, for unlawful retaliation and intimidation. Some of those claims are based on violations outlined in two statutes of Ohio law that allow individuals to sue in civil court for crimes they have endured.

The first statute, R.C. 2307.60 (civil action for damages for criminal act), states that 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.”

The second statute, R.C. 2921.03 (intimidation), states in relevant part that any person who uses “a materially false or fraudulent writing with malicious purpose, in bad faith, or in a wanton or reckless manner ... to influence, intimidate, or hinder a public servant ... in the discharge of the person's duty” is “liable in a civil action to any person harmed by the violation ... incurred as a result of the commission of the offense.”

Still, Weisdack and Budzik are insisting that they can’t be sued in civil court because they have not yet been convicted of a crime by a criminal court. The trial court rejected that reasoning in June 2018, but then Weisdack's lawyers appealed to Ohio’s highest court, claiming that the law is unclear and unsettled on the point.

“The plain language of the statute is crystal clear: there is absolutely no conviction requirement,” says Chandra. “The legislative history is clear as well: the legislature did not intend to add the unreasonably burdensome criminal conviction requirement on crime victims. If they'd meant to do that, they had plenty of opportunities to do it—but they never did. We are optimistic after today's oral argument that the Supreme Court will see these nonsensical efforts to escape responsibility for what they are."

There is no explicit conviction requirement cited in either statute, Buddenberg's legal team tells the court in its brief. The legislative history of the issue, going as far back as the 19th century, also supports this view. In fact, until 2007, R.C. 2307.60 actually outright prohibited the use of a criminal conviction in a civil action. Even when the legislature removed the prohibition in 2007, it added no conviction requirement.

The amicus brief filed by Ohio's attorney general on behalf of the State of Ohio says that the state's plain language reading of the statute makes it clear that no criminal conviction is required for a civil suit and notes that “Ohio and dozens of local governments have asserted claims under R.C. 2307.60 in suits against manufacturers and distributors of opioids.”

Insisting on the procedures of a criminal trial and conviction are “absurd overkill when placed in the path of a civil litigant,” according to the amicus brief filed by several victim's rights groups, the Ohio Crime Victim Justice Center, the Ohio Alliance To End Sexual Violence, the Cleveland Rape Crisis Center, and the Ohio Now Education And Legal Fund. Their brief emphasizes that the undisputed purpose of the statutes—and all legislative updates—is to make it easier for victims seek redress for wrongs in civil court, not more difficult. They say that the defendants’ incorrect interpretation of the statutes would threaten to undo well-established law in all other civil suits that are based on alleged criminal conduct, including “Marsy's Law,” the Ohio constitutional amendment providing victims with notice of criminal proceedings—which was passed by 83% of Ohio voters.

The defendants' reasoning would also violate the Ohio Constitution’s “open courts” provision, according to Buddenberg's brief. The state's constitution guarantees every person “remedy by due course of law” by “justice administered without denial or delay”—a right the Ohio Supreme Court has interpreted to prohibit any law that would prevent individuals from pursuing relief for their injuries. But under the defendants' reasoning, crime victims, or any injured plaintiffs, could file a civil suit only if a prosecutor successfully obtained a conviction, leaving victims' ability to find justice to prosecutorial whim.

The current case follows on an important legal victory for crime victims in 2016, when the Ohio Supreme Court—in a case also handled by Chandra Law—affirmed that victims can recover civil damages for criminal acts under R.C. 2307.60.

Read Rebecca Buddenberg’s brief on the merits here. In September 2019, with Chandra Law's help, she secured a victory before the federal Sixth Circuit appeals court against Jim Budzik, the lawyer she alleged actively participated in the First Amendment and Title VII employment retaliation against her.

Subodh Chandra's oral argument before the Ohio Supreme Court may be viewed on The Ohio Channel’s website here. Sandhya Gupta and Donald Screen of Chandra Law are co-counsel for Ms. Buddenberg and prepared Ms. Buddenberg's briefs in the case.

Related Practice Areas
Employment retaliationFirst AmendmentSex/gender discrimination
Tags
civil-liability-for-criminal-actsintimidationfirst-amendment-retaliationfirst-amendmenttitle-viisex-discriminationr.c.-2307.60false-writingr.c.-2921.03rebecca-buddenbergrobert-weisdackjames-budzik

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