Bonds v. Department of Rehabilitation & Correction ( 1996 )

I respectfully dissent.

Walter H. Sayre was arrested on October 21, 1991. Less than ten days later, the sheriff's office in Osceola County, Florida, notified Akron police that it held an active arrest warrant on Mr. Sayre and that it wished for Mr. Sayre to be extradited to Florida. As a result, Akron police obtained a fugitive warrant for Mr. Sayre and caused him to be brought into court. Mr. Sayre waived extradition proceedings, and a judge then ordered that he be delivered and surrendered to Florida authorities.

In January 1992, Mr. Sayre was given a six-month, definite sentence of imprisonment and was conveyed into the custody of the Ohio Department of Rehabilitation and Correction ("DRC"). The DRC then made the same mistake made by a majority of this panel when it ignored the portion of former R.C. 2967.19 which granted good time "* * * prorated for each month of the sentence during which he [the inmate] faithfully has observed the rules of the institution. * * *" Mr. Sayre did not faithfully observe the rules of any institution before his arrival in the custody of the DRC, so did not begin earning good-time credit until he arrived in the custody of the DRC. I do not believe that former R.C. 2967.19(A) can justifiably be construed to emphasize three words but to ignore the qualifying language which limits good time to time when an inmate exhibits good behavior in an institution.

I would sustain the first assignment of error.

As to the second assignment of error, I am even more troubled. To me, the majority opinion says that the DRC can escape liability for its actions when it ignores a valid court order compelling extradition of a prisoner and even ignores its obligation to notify the state who is entitled to receive the prisoner when the prisoner will be available.

Applying either a negligence per se standard or a reasonable person standard, the result should be the same. DRC should retain in custody those who it has been ordered to retain and should both notify a state which is seeking extradition of the date an inmate will be available and surrender the inmate to the authorities of that state at the appropriate time. Failure to do so is a violation of statute, of the Ohio Administrative Code, and of the duties of a reasonable system of corrections. To me, the majority opinion strains to relieve DRC of responsibility for this common sense, minimal requirement.

I note that Mr. Sayre agreed to be extradited and a court ordered that he be extradited. He was not extradited.

I note that the Ohio Administrative Code at 5120:1-1-33(B) requires that notice be given of the pending release date of an inmate who is subject to a detainer. No notice was given.

I note R.C. 2963.24 directs that an inmate who has been ordered to be extradited be delivered to the state seeking extradition. Mr. Sayre was not delivered.

Perhaps the greatest concern to me is the fact that the majority opinion utterly ignores the ruling of a five-person majority of the Supreme Court of Ohio in Crawford v. Ohio Div.of Parole Community Serv. (1991), 57 Ohio St. 3d 184,566 N.E.2d 1233. Instead, the majority opinion quotes as if it were precedent the statement in the dissent of a single justice about the extent of the applicability of negligence per se. I find this reliance upon a statement about a legal principle which was clearly rejected by a five-person majority of the Supreme Court of Ohio to be utterly incomprehensible.

The Supreme Court of Ohio's subsequent opinion in Hurst v.Ohio Dept. of Rehab. Corr. (1995), 72 Ohio St. 3d 325,650 N.E.2d 104, is also clearly consistent with the majority opinion in the Crawford case and inconsistent with the ruling in the majority opinion. I restate part of the quote in the majority opinion above:

"We have held that ``[w]here there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se.' Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, 53 Ohio Op. 274, 119 N.E.2d 440, paragraph three of the syllabus."

I note that the focus is upon the specificity of the duty, not upon who ultimately was injured. In the case of Beulah Bonds, the duties are quite specific. The DRC was required to notify Florida of when Mr. Sayre would be available and was required to surrender Mr. Sayre to Florida authorities at that time. Such duties are not defined in abstract or general terms, but are clear duties capable of being adjudicated by determination of a single fact.

The clear danger of the majority opinion's disregard of the holdings of the Supreme Court of Ohio in the Crawford andHurst cases is that law-abiding citizens can have no remedy for the failure of state authorities to confine inmates who the state authorities have a clear duty to confine and extradite. The majority opinion simply says that the doctrine of negligenceper se is to protect a "class of persons" different from the class of people of which Beulah Bonds is a member, which to me means the class consisting of law-abiding citizens generally. Instead, according to the majority opinion, the only people who can sue the state when an inmate who is supposed to be confined rapes an innocent woman are members of some other, undefined "class of persons."

In short, I believe that the DRC had a duty to confine Mr. Sayre until he had completed his sentence, to notify Florida of the date his sentence was to be completed, and to surrender him to Florida on that date. The failure to perform any of those duties, let alone all three, constitutes negligence for which the DRC should be held liable. Since a majority of this panel reaches a different conclusion, I respectfully dissent.