February 27, 2024

Thinking About Victims’ Rights Appellate Review Differently

Elizabeth Well

For those of us who practice appellate law, it is axiomatic that having a final, appealable order—however that is defined in the statutes or constitution of your state—is a jurisdictional requirement for appellate review.

This requirement, while seemingly logical and straightforward, can impose significant hurdles for victims of crime. Often, a judge may make a ruling from the bench that violates a victim’s right and never journalize that ruling. In more extreme circumstances, a judge may completely ignore a victim, their counsel, and any assertion of that victim’s rights. In these cases, what can counsel do? Any motion for clarification or motion for an order will likely be ignored, just as was the original motion.

Recently, Ohio Crime Victim Justice Center (OCVJC) began considering whether a victim needs a final, appealable order to exercise appellate rights.

Consider the plain language of Ohio law:

Ohio Constitution, Article I, Section 10a(B) states:
The victim, the attorney for the government upon request of the victim, or the victim’s other lawful representative, in any proceeding involving the criminal offense or delinquent act against the victim or in which the victim’s rights are implicated, may assert the rights enumerated in this section and any other right afforded to the victim by law. If the relief sought is denied, the victim or the victim’s lawful representative may petition the court of appeals for the applicable district, which shall promptly consider and decide the petition.

(Emphasis added.) Ohio Constitution, Article I, Section 10a(E) states: “All provisions of this section shall be self-executing and severable, and shall supersede all conflicting state laws.”

Ohio Constitution, Article IV, Section 3(B)(2) states, in pertinent part: “Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * * .” (Emphasis added.)

Ohio Revised Code Section 2930.19(A)(1) states: “A victim, victim’s representative, or victim’s attorney, if applicable, or the prosecutor, on request of the victim, has standing as a matter of right to assert, or to challenge an order denying, the rights of the victim provided by law in any judicial or administrative proceeding.” (Emphasis added.)

As Ohio Supreme Court’s Chief Justice Kennedy stated in her dissent in State ex rel. Thomas v. McGinty, 164 Ohio St. 3d 167, 2020-Ohio-5452, 172 N.E.3d 824, ¶ 65:

In adopting Marsy’s Law, the people of Ohio did not condition the right to petition the court of appeals on satisfying the requirements of R.C. 2505.02(B)(4). The people made the rights created by Article I, Section 10a, including the right to petition the court of appeals to vindicate those rights, self-executing. Section 10a expressly ‘supersede[s] all conflicting state laws’ and leaves no room for the General Assembly to restrict the constitutional remedy by which victims of crime assert their rights. Therefore, a crime victim’s right to petition the court of appeals is not conditioned on the existence of a ‘final order’ as defined by R.C. 2505.02(B).

Considering the plain language of Ohio’s constitution and this significant interpretation from Ohio’s foremost jurist, OCVJC has recently filed a case in the Ohio Supreme Court (State v. Gronbeck) challenging an appellate court’s dismissal of a victim appeal due to the lack of a final, appealable order. Victim counsel throughout the country should consider whether the plain language of their laws might provide greater flexibility in seeking remedies than we previously believed. After all, if we simply continued to practice law “the way it’s always been done,” victims’ rights attorneys would not exist.