As Reported by the House Local and Municipal Government and Urban Revitalization Committee

127th General Assembly
Regular Session
2007-2008
Sub. H. B. No. 459


Representative Hottinger 

Cosponsors: Representatives McGregor, J., Fessler, Gardner, Evans, Combs, Flowers, Uecker 

A BILL
To amend section 313.19 of the Revised Code to 1
establish procedures for the commencement, 2
determination, and appeal of an action to change a 3
death certificate or coroner's verdict.4


BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That section 313.19 of the Revised Code be amended 5
to read as follows:6

       Sec. 313.19. (A) As used in this section:7

       (1) "Decedent" means the person whose death is recorded on a 8
death certificate.9

       (2)(a) "Interested party" means a person that has a 10
substantial interest in the correctness of a death certificate or 11
coroner's verdict and includes, but is not limited to:12

       (i) The spouse of the decedent at the time of the decedent's 13
death;14

       (ii) A natural or adoptive parent of the decedent;15

       (iii) A natural or adopted child of the decedent, or a parent 16
of the natural or adopted child;17

       (iv) An executor or other fiduciary appointed by a court to 18
care for the decedent's estate;19

       (v) The prosecuting attorney of the county in which the death 20
certificate for the decedent was filed.21

       (b) "Interested party" does not include any of the following:22

       (i) A person who has been convicted of or pleaded guilty to 23
any offense related to the death of the decedent unless and until 24
the conviction is overturned, vacated, or otherwise set aside and 25
the action overturning, vacating, or otherwise setting aside the 26
conviction is not subject to further appeal or trial;27

       (ii) A person, other than a prosecuting attorney, who in the 28
court's opinion is acting solely on behalf of another person who 29
is not an interested party in order to advance the claims of the 30
other person.31

       (3) "Substantial interest" means a contractual or other 32
financial interest of the person asserting the substantial 33
interest or of that person's heirs in the correctness of the death 34
certificate or coroner's verdict. "Substantial interest" also 35
means an emotional interest based upon a close familial 36
relationship to the decedent and an interest based upon the death 37
certificate or coroner's verdict exposing the person to a 38
substantial possibility of civil liability for wrongful death, a 39
products liability claim, or other similar civil liability.40

       (4) "Offense related to the death of the decedent" means any 41
of the following:42

       (a) Aggravated murder, murder, voluntary manslaughter, 43
involuntary manslaughter, reckless homicide, negligent homicide, 44
aggravated vehicular homicide, vehicular homicide, or vehicular 45
manslaughter;46

       (b) An attempt to commit, complicity in committing, or 47
conspiracy to commit any of the offenses listed in division 48
(A)(4)(a) of this section;49

       (c) Perjury, obstructing justice, or tampering with evidence 50
in relation to any offense listed in division (A)(4)(a) or (b) of 51
this section;52

       (d) Violating any law of this state or any municipal 53
ordinance that is substantially similar to any offense described 54
in division (A)(4)(a), (b), or (c) of this section;55

       (e) Violating any law of this state or any municipal 56
ordinance that is a criminal offense in which the death of another 57
is an element.58

       (5) "Person" means an individual, political subdivision of 59
the state, governmental entity of the state, corporation, business 60
trust, estate, partnership, or association.61

       (B) The cause of death and the manner and mode in which the 62
death occurred, as delivered by the coroner and incorporated in 63
the coroner's verdict and in the death certificate filed with the 64
division of vital statistics, shall be the legally accepted manner 65
and mode in which such death occurred, and the legally accepted 66
cause of death, unless pursuant to this section the court of 67
common pleas of the county in which the death occurred, after a 68
hearing, directs the coroner to change histhe coroner's decision 69
as to such cause and manner and mode of death. In any action or 70
proceeding in which the cause of death and the manner and mode in 71
which the death occurred is a genuinely contested issue, no trier 72
of fact shall presume the correctness of a death certificate or 73
coroner's verdict.74

       (C) A coroner may modify a death certificate or coroner's 75
verdict as allowed by law, but no court shall order a modification 76
of a death certificate or coroner's verdict except pursuant to 77
this section.78

       (D) An interested party may seek relief under this section by 79
filing a petition within three years after the decedent's death. 80
The three-year period is not tolled by the pendency of a criminal 81
prosecution, proceeding for post-conviction relief, or appeal 82
related to the death of the decedent. The petitioner shall name as 83
a respondent the county coroner of the county in which the death 84
certificate was filed and all other persons whom a diligent search 85
would reveal to be interested parties if the Rules of Civil 86
Procedure require the joinder. A petition may include as a 87
respondent any interested party whose joinder is permitted by the 88
Rules of Civil Procedure. The petition shall state in detail the 89
relief sought and be accompanied by affidavits supporting the 90
claims contained in the petition. If any issue raised in the 91
petition addresses matters that require expert opinion, one or 92
more of the affidavits shall be made by an expert whose 93
qualifications, as shown in the affidavit, appear to comply with 94
the provisions of the Rules of Evidence concerning expert 95
testimony. The petition shall be served in accordance with the 96
Rules of Civil Procedure.97

       (E)(1) Except as provided in division (K) of this section, no 98
court shall hear a petition that is not filed within the time 99
prescribed by this section or extend the time within which a 100
petition may be filed. The court may dismiss any petition that 101
fails to properly join and serve any interested party required to 102
be joined if it appears to the court that the petitioner, through 103
a diligent search, should have identified that party as an 104
interested party, and after being alerted to the failure to join 105
an interested party by the court or by another party, the 106
petitioner fails to make reasonable efforts to join the interested 107
party.108

       (2) A court with which a petition has been filed under this 109
section shall dismiss the petition without a hearing if the 110
petition and accompanying affidavits present only evidence that is 111
substantially the same as evidence that was used or available for 112
use in a prior criminal proceeding or related collateral 113
proceeding by any interested party and if the court in the prior 114
proceeding entered a judgment adverse to that interested party's 115
claim. Evidence shall not be deemed unavailable for use in a prior 116
criminal proceeding or related collateral proceeding solely 117
because it was not presented in that proceeding or was excluded 118
from consideration by the trier of fact in that proceeding on 119
procedural grounds.120

        (3) In an action brought under this section, the court, in 121
its discretion and on any terms that it considers appropriate, may 122
permit a person, except a person described in division 123
(A)(2)(b)(i) of this section, that would not otherwise qualify as 124
an interested party to be joined as a permissible party and to 125
participate in the action if the court determines that the 126
joinder of the person is necessary to protect the interests of 127
the person. A court's decision to grant or deny a request for 128
joinder of a permissible party is final and not appealable.129

       (F)(1) If a petition is filed in a timely manner pursuant to 130
this section during the pendency of a criminal prosecution, 131
proceeding for post-conviction relief, or appeal related to the 132
death of the decedent, upon motion of the prosecuting attorney, if 133
the petitioner is a person charged with an offense related to the 134
death of the decedent, the court shall stay the proceedings on the 135
petition until the defendant in the criminal prosecution, the 136
petitioner in the proceeding for post-conviction relief, or the 137
appellant in the appeal has exhausted the defendant's, 138
petitioner's, or appellant's state and federal rights of direct 139
appeal and collateral review. No court shall stay or continue the 140
proceedings if the stay or continuance would unduly prejudice the 141
rights of any other interested party joined in the action at the 142
time of the petition.143

       (2) Upon motion of the prosecuting attorney, the court may 144
stay the proceedings on any petition in which the petitioner is 145
not a person charged with an offense related to the death of the 146
decedent, if the court finds that further proceedings could 147
compromise a criminal prosecution, proceeding for post-conviction 148
relief, or appeal related to the death of the decedent, unless 149
such a stay or a continuance would unduly prejudice the rights of 150
any other interested party.151

       (G)(1) If the court finds that a petition filed pursuant to 152
this section meets all of the requirements set forth in this 153
section, the court shall set the petition for hearing. Before the 154
hearing the court may, but need not, do any of the following:155

       (a) Require that the coroner or any other party file and 156
serve an answer to the petition;157

       (b) Grant to any party the right to conduct discovery under 158
the Rules of Civil Procedure;159

       (c) Permit the filing of, and rule upon, any motions 160
authorized by the Rules of Civil Procedure;161

       (d) Issue any order that the court considers necessary to a 162
fair determination.163

       (2) At the hearing the petitioner shall have the burden of 164
going forward with evidence and shall have the burden of proving 165
by a preponderance of the evidence that the death certificate or 166
coroner's verdict is in error. The hearing shall be conducted 167
without a jury and in accordance with the Rules of Evidence.168

       (H) A dismissal of a petition for failure to comply with any 169
of the provisions of this section, or for failure of proof after a 170
hearing, is a dismissal with prejudice to the filing of another 171
petition related to the death certificate or coroner's verdict in 172
question by all named petitioners and against all persons whose 173
interest is in privity with any of the petitioners and all joined 174
parties.175

       (I) If a party to an action brought under this section 176
appeals the final decision of the court, the court of appeals 177
shall do one of the following:178

       (a) If the final decision modifies the death certificate or 179
coroner's verdict, conduct a review de novo;180

       (b) If the final decision affirms the correctness of the 181
death certificate or coroner's verdict, determine whether the 182
trial court abused its discretion with regard to an appealable 183
matter and either affirm the decision or remand the case to the 184
trial court for further proceedings.185

       (J) No change in a death certificate or coroner's verdict 186
made pursuant to this section shall be the basis of a new trial 187
for, or the withdrawal of any plea to, any offense related to the 188
death of the decedent unless a court determines a change in a 189
death certificate or coroner's verdict to be a proper basis in a 190
criminal case for postconviction relief under sections 2953.21 to 191
2953.23 of the Revised Code.192

       (K) The prosecuting attorney may file a petition beyond the 193
time period prescribed in division (E) of this section, or may 194
file a subsequent or successive petition, upon the discovery of 195
new evidence that, in the opinion of the prosecuting attorney, 196
warrants such a filing in order to correct a manifest injustice. 197
Any other interested party may file a petition beyond the time 198
period prescribed in division (E) of this section only upon the 199
discovery of new evidence that the petitioner was unavoidably 200
prevented from discovering within that time period.201

       (L) Nothing in this section shall be construed or applied to 202
give a person charged with an offense related to the death of the 203
decedent any right to conduct discovery or to have access to 204
discovery beyond that which the person is entitled under the law 205
as applicable to a criminal prosecution.206

       Section 2. That existing section 313.19 of the Revised Code 207
is hereby repealed.208

       Section 3. This act is intended to be a remedial measure. It 209
is the General Assembly's specific intent that those provisions of 210
this act that prohibit a person who has been convicted of or 211
pleaded guilty to any offense related to the death of a decedent 212
from maintaining an action under this act, unless and until the 213
conviction is overturned, vacated, or otherwise set aside and the 214
action overturning, vacating, or otherwise setting aside the 215
conviction is not subject to further appeal or trial, as well as 216
the provisions that require or permit a stay of proceedings on a 217
petition during the pendancy of a criminal prosecution, 218
proceeding for post-conviction relief, or appeal related to the 219
death of the decedent, shall be applied retrospectively to all 220
cases filed under section 313.19 of the Revised Code, whether or 221
not the case is pending on the effective date of this act. All 222
other provisions of this act shall govern all proceedings in 223
actions brought after the effective date of this act and also all 224
further proceedings in actions pending on that date, except if in 225
the court's opinion the application of those provisions in a 226
particular action would not be feasible or would cause injustice, 227
in which event former procedures apply.228