Lead Opinion
{¶ 1} In this appeal from the Sixth District Court of Appeals, we consider whether appellee, Ohio Department of Natural Resources, Division of Wildlife (“ODNR”), has the authority to seek, pursuant to R.C. 1531.201(B), the recovery of the civil restitution value of an antlered white-tailed deer taken in violation of R.C. Chapter 1533 when ODNR had seized parts of the deer as evidence during
{¶ 2} For the reasons that follow, R.C. 1531.201 is unambiguous and clearly expresses the intent of the legislature. Therefore, we hold that R.C. 1531.201(C) mandates that ODNR recover the civil restitution value of an antlered white-tailed deer with a gross score of more than 125 inches from an offender who has been convicted of a violation of R.C. Chapter 1531 or 1533 or division rule. We further hold that R.C. 1531.201(B) permits ODNR to file a civil action to recover the civil restitution value even though it had seized the deer meat and antlers as evidence in the criminal investigation and was awarded possession of those items as a result of a conviction for a violation of R.C. Chapter 1531 or 1533 or division rule. We affirm the judgment of the court of appeals.
I. Facts and Procedural History
{¶ 3} In November 2010, ODNR wildlife officers began investigating a complaint that Risner was hunting on CSX Railway property without written permission. During the investigation, the wildlife officers discovered a tree stand, deer entrails and organs, and a blood trail on CSX property. Samples of the organs and blood were taken as evidence. As part of the investigation, the wildlife officers seized a set of deer antlers from a taxidermist and deer meat from a butcher, both of which had been brought in by Risner. The wildlife officers also paid the butcher $90 for the remaining amount owed for the deer-processing fee.
{¶ 4} The wildlife officers took the antlers to be measured. The official score was 228 6/8 inches, which is considered to be an extraordinarily large and unusual deer in Ohio.
{¶ 5} Blood and organ samples, along with samples of the processed meat and tissue collected from the antler skull plate, were sent to a lab for DNA testing. Testing confirmed that all the samples came from one white-tailed deer.
{¶ 6} In January 2011, Risner was charged with hunting without permission, a violation of R.C. 1533.17. The next month, he pled no contest. The court found Risner guilty and imposed a $200 fine, restitution of $90 to ODNR for the deer-processing fee, and court costs of $55. The court also ordered the meat forfeited to ODNR and suspended Risner’s Ohio hunting license for one year. A few months later, the court ordered the antlers forfeited to ODNR pursuant to R.C. 2981.12.
{¶ 8} In May 2012, Risner filed a declaratory-judgment action against ODNR. He alleged that an order of restitution under R.C. 1531.201 was illegal and unconstitutional because the state had taken possession of the deer, in lieu of restitution, in the criminal proceeding. ODNR filed a counterclaim under R.C. 1531.201 to recover the restitution value of the deer. The trial court, without addressing Risner’s constitutional claims, concluded that the plain language of R.C. 1531.201 prevented ODNR from seeking restitution for the deer after ODNR had been awarded possession of the deer and antlers in prior proceedings.
{¶ 9} ODNR appealed the trial court’s decision to the Sixth District Court of Appeals. The Sixth District held that the plain meaning of R.C. 1531.201 did not “restrict ODNR from bringing a civil action to recover the restitution value if wildlife officers ha[d] already seized parts of the wild animal.”
II. Law and Analysis
{¶ 10} Risner contends that the plain language of R.C. 1531.201(B) permits ODNR to seek either possession of the deer Risner had killed or restitution for the deer. But, Risner contends, it may not seek both. Risner asserts that ODNR is barred from seeking restitution for the deer because it had already taken possession of the deer by seizing the antlers and meat during the criminal investigation and obtaining an order of forfeiture for those items at the conclusion of the criminal action.
{¶ 11} In response, ODNR contends that the restitution imposed upon Risner was mandatory under R.C. 1531.201(C) and that its attempt to recover restitution is not affected by an order imposed in a criminal proceeding. ODNR further states that an examination of the language of R.C. 1531.201 permits it to recover both the poached animal and the restitution value of the animal. Finally, ODNR asserts that the legislature intended R.C. 1531.201 to be expansive and that restitution is a deterrent to poaching.
{¶ 12} When interpreting a statute, a court’s paramount concern is legislative intent. State ex rel. United States Steel Corp. v. Zaleski,
{¶ 13} R.C. 1531.201 states:
(B) The * * * division of wildlife * * * may bring a civil action to recover possession of or the restitution value of any wild animal held, taken, bought, sold, or possessed in violation of this chapter or Chapter 1533. of the Revised Code or any division rule against any person who held, took, bought, sold, or possessed the wild animal.
(C) (1) In addition to any restitution value established in division rule, a person who is convicted of a violation of this chapter or Chapter 1533. of the Revised Code or a division rule governing the holding, taking, buying, sale, or possession of an antlered white-tailed deer with a gross score of more than one hundred twenty-five inches also shall pay an additional restitution value * * *.
* * *
(D) Upon conviction of holding, taking, buying, selling, or possessing a wild animal in violation of this chapter or Chapter 1533. of the Revised Code, or a division rule, the chief shall revoke until payment of the restitution value is made each hunting license * * * issued to that person under this chapter or Chapter 1533 of the Revised Code.
* * *
(E) Nothing in this section affects the right of seizure under any other section of the Revised Code.
{¶ 14} R.C. 1531.201 is unambiguous and clearly expresses the intent of the legislature. R.C. 1531.201(B) states that ODNR may “recover possession of or the restitution value of any wild animal” in the civil action that ODNR is authorized to file against an individual who has violated R.C. Chapter 1531 or
{¶ 15} Both Risner’s and the dissent’s interpretation of R.C. 1531.201(B) would require the deletion of the words “bring a civil action to” from the statute, thereby preventing ODNR from taking possession of or recovering the restitution value of an animal in a civil action, and the insertion of language permitting an award in a related criminal action to be considered. But this court must give effect to the words used. Cleveland Elec. Illum. Co. v. Cleveland,
{¶ 16} Our interpretation of R.C. 1531.201(B) is supported by R.C. 1531.201(C) and (D), which are mandatory, self-executing provisions. R.C. 1531.201(C) states that a person convicted of a violation involving an antlered white-tailed deer with a gross score over 125 inches “shall pay an additional restitution value.” And R.C. 1531.201(D) states that upon a conviction involving a wild animal in violation of R.C. Chapter 1531 or 1533 or a division rule, ODNR “shall revoke” the offender’s hunting license until restitution is paid. We have held that “shall” is to be “ ‘interpreted to make mandatory the provision in which it is contained, absent a clear and unequivocal intent that it receive a construction other than its ordinary meaning.’ ” State v. Palmer,
{¶ 17} Additionally, it is the violation of R.C. Chapter 1531 or 1533 or a division rule — and only the violation — that triggers the mandatory duties in R.C. 1531.201(C) and (D). The construction advanced by Risner would render meaningless these unequivocal mandates imposed upon ODNR by the legislature. We have repeatedly stated that a construction that renders a provision superfluous, meaningless, or inoperative should be avoided. Boley,
{¶ 18} Last, in R.C. 1531.201(E), the legislature has specifically stated that R.C. 1531.201 does not affect the “right of seizure under any other section of the Revised Code.” E.g., R.C. 1531.13 (authorizing law-enforcement and wildlife
{¶ 19} Accordingly, reading the statute as a whole, R.C. 1531.201 operates by its clear terms as follows: upon a conviction in violation of R.C. Chapter 1531 or 1533 or division rule involving a white-tailed deer with a gross score of more than 125 inches, ODNR is required to recover civil restitution from the offender, see R.C. 1531.201(C), and revoke the offender’s hunting license until payment of the restitution value is made, see R.C. 1531.201(D). ODNR has no discretion with respect to either civil restitution or revocation of the license. In the event the offender does not pay the restitution value in order to regain the hunting license, R.C. 1531.201(B) permits ODNR to file a civil action to recover the civil restitution value even though ODNR had seized the deer meat and antlers as evidence in the criminal investigation and was awarded possession of that evidence as a result of a conviction for a violation of R.C. Chapter 1531 or 1533 or division rule.
{¶ 20} Further, if R.C. 1531.201 were ambiguous, we would be able to determine the General Assembly’s intent by looking to the statutory language, the circumstances in which the statute was enacted, legislative history, and the consequences of a particular construction. Sheet Metal Workers’ Internatl. Assn., Local Union No. 33 v. Gene’s Refrigeration, Heating & Air Conditioning, Inc.,
{¶ 21} In 2008, subsections (C) and (D) were added to R.C. 1531.201. 2007 Am.H.B. No. 238. Testimony presented in support of these amendments discussed the problem Ohio faces from poachers and argued for a greater deterrence to poaching.
Poachers don’t take just one animal. There have been numerous cases in recent years involving multiple deer, turkeys, small game and sometimes endangered species for which there is no legal hunting season. Ohio’s laws regarding fines and restitution for wildlife violations have not been updated in years and in many cases are so low that poachers consider them a “cost of doing business.” HB 238 would change that and make poachers take our wildlife laws seriously.
{¶ 22} Dave Graham, then the chief of the Division of Wildlife at ODNR, also testified:
The * * * restitution value for a whitetail deer is $400. Having researched common prices for taking a trophy buck in a hunting preserve we found that a 190-class buck costs about $15,000. If a poacher takes an animal in this class currently it is a first degree misdemeanor with a penalty which could be between $0 and $500, jail time up to 60 days, and a civil penalty of up to $400 — all at the judge’s discretion. It is not uncommon in some jurisdictions for fines to be $100 or less, jail time nonexistent and restitution negligible. The bottom line is that current penalties and restitution are not a deterrent to poaching.
Wild Animals-Restitution Value, Hearing on 2007 Am.H.B. No. 238 Before the H. Agriculture & Natural Resources Comm., 127th Gen. Assem. (June 13, 2007) (statement of Dave Graham, Chief, Div. of Wildlife).
{¶ 23} It is evident from these excerpts that the legislative intent in enacting R.C. 1531.201 is to preserve Ohio’s wildlife for legitimate hunters and naturalists and to provide a significant deterrent to those individuals who seek to harm the state’s aesthetic, economic, and recreational interests. Risner’s construction eviscerates this purpose. Requiring ODNR to choose between possession of the deer’s remains and restitution when a white-tailed deer of this caliber is poached removes all deterrent effect and allows the “cost of doing business” mindset to prevail. In fact, Graham’s concerns are illustrated by the minimal criminal penalties that were imposed upon Risner.
{¶ 24} Finally, we would then need to read R.C. 1531.201 in pari materia with the other statutes contained in R.C. Chapter 1531 that relate to the same subject matter “to discover and carry out legislative intent.” Sheet Metal Workers’ Internatl. Assn.,
{¶ 25} The dissent asserts that R.C. 1531.201 permits a double recovery, which violates the Double Jeopardy Clause. Regardless of the merits of this assertion, it is not properly before this court. Risner’s complaint raises only the following constitutional challenges: equal protection, due process, right to trial by a jury, separation of powers, right to an open court, and right to a remedy. In his motion for summary judgment, Risner argued that R.C. 1531.201 was unconstitutional because it violated the right to trial by jury, Article I, Section 5, Ohio Constitution; the right to redress in courts, Article 1, Section 16, Ohio Constitution; and equal protection, Article 1, Section 2, Ohio Constitution. In this appeal, Risner’s proposition of law focuses on the statutory interpretation of R.C. 1531.201, not on constitutional challenges.
{¶ 26} We recently reaffirmed that “ ‘an appellate court will not consider any error which counsel for a party complaining of the trial court’s judgment could have called but did not call to the trial court’s attention at a time when such error could have been avoided or corrected by the trial court.’ ” State v. Quarterman,
{¶ 27} It is, however, within this court’s discretion to consider a forfeited constitutional challenge and review the trial court’s decision for plain error. Id. at ¶ 16. An appellate court “must proceed with the utmost caution” in applying the doctrine of plain error in a civil case. Goldfuss v. Davidson,
{¶ 28} We would also do a disservice to the litigants and the trial court by considering this issue in this appeal. As stated, Risner did not raise a double-jeopardy claim at any time in the course of this litigation. We “should be
{¶ 29} Furthermore, we have stated that a court should avoid reaching constitutional issues if a case can be decided on other grounds. In re Miller,
{¶ 30} Accordingly, these issues remain for resolution by the trial court.
III. Conclusion
{¶ 31} R.C. 1531.201 is unambiguous and clearly expresses the intent of the legislature. Therefore, we hold that R.C. 1531.201(C) mandates that ODNR recover the civil restitution value of an antlered white-tailed deer with a gross score of more than 125 inches from an offender who has been convicted of a violation of R.C. Chapter 1531 or 1533 or division rule. We further hold that R.C. 1531.201(B) permits ODNR to file a civil action to recover the civil restitution value even though it had seized the deer’s meat and antlers as evidence during the criminal investigation and was awarded possession of that evidence as a result of a conviction for a violation of R.C. Chapter 1531 or 1533 or division rule. The judgment of the court of appeals is affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting.
{¶ 32} Respectfully, I dissent.
{¶ 34} Risner filed this declaratory judgment action in common pleas court asserting that the assessment was illegal and unconstitutional. ODNR counterclaimed for the value of the deer. The trial court granted Risner’s motion for summary judgment, finding that ODNR could not seek the restitution value of the deer when it had already been awarded possession of the deer meat and the antlers in the criminal proceeding.
{¶ 35} The court of appeals reversed and ruled that because “Mr. Risner has no title to or ownership interest in the lawfully seized wild animal parts, it is illogical to construe R.C. 1531.201(B) to require ODNR to choose between possession of the unlawfully taken parts or restitution for the unlawfully taken deer.”
{¶ 36} In this court, the majority concludes that R.C. 1531.201 authorizes ODNR to seek the $27,851.33 restitution value of the animal regardless of the fact that the state has possession of the animal, explaining that “ODNR has the authority to file a civil action to recover civil restitution for the deer notwithstanding ODNR having been awarded possession of the deer,” majority opinion at ¶ 24, and that “ODNR does not have discretion not to impose the additional civil restitution required by R.C. 1531.201(C),” id. at ¶ 16. The majority interprets R.C. 1531.201 to mandate that ODNR recover both possession of the animal and its restitution value.
{¶ 37} The majority misinterprets the statute. {¶ 38} R.C. 1531.201(B) states that ODNR “may bring a civil action to recover possession of or the restitution value of any wild animal held, taken, bought, sold, or possessed” in violation of state wildlife laws. (Emphasis added.) The statute
{¶ 39} Similarly, the legislature could have authorized ODNR to assess a civil penalty, as it has authorized the director of agriculture to do in connection with laws regulating the breeding and retail sale of dogs, R.C. 956.13, and the keeping of dangerous wild animals, R.C. 935.24. It also has recently authorized civil penalties to protect natural resources that, like wildlife, the state holds in trust. See, e.g., R.C. 1511.11 (civil penalty for applying manure to fields in a manner that could result in its runoff into the western basin of Ohio); R.C. 1520.03 (civil penalty for diverting water); R.C. 1506.09 (civil penalty for violation of the coastal management program). But the statutes that regulate hunting do not authorize the imposition of civil penalties.
{¶ 40} In contrast to those provisions, which expressly authorize the assessment of a civil penalty, the General Assembly used the word “restitution” in R.C. 1531.201. Black’s Law Dictionary 1339 (8th Ed.2004) defines “restitution” to mean the “[rjeturn or restoration of some specific thing to its rightful owner or status” or “[c]ompensation for loss; esp., full or partial compensation paid by a criminal to a victim, not awarded in a civil trial for tort, but ordered as part of a criminal sentence or as a condition of probation.” As we explained in Cincinnati v. Cincinnati Dist. Council 51,
{¶ 41} In State v. Lalain,
{¶ 42} We recognized that a trial court has statutory authority to impose restitution as part of a sentence in order to compensate the victim for economic loss. Id. at ¶ 20. However, we clarified that the amount of “restitution may not exceed the amount of economic loss suffered as a direct and proximate result of the commission of the offense,” id. at ¶ 23, and reversed the award of restitution, because it was an award of the “consequential costs incurred subsequent to the theft to value the property that had been taken from and later returned to AeroInstruments,” not the actual economic loss suffered as a direct and proximate result of the commission of the offense, id. at ¶ 25.
{¶ 43} Similarly here, ODNR has already recovered the animal itself. It cannot recover more in restitution than its economic loss.
{¶ 44} Restitution serves rehabilitative goals in criminal sentencing; as the United States Supreme Court recently explained in Paroline v. United States, — U.S. — ,
{¶ 45} There is no indication that the General Assembly intended to deviate from these legal principles or to permit double recovery in cases of this type. Tellingly, other statutes governing restitution limit the victim to a single recovery of the actual economic loss. See, e.g., R.C. 2929.18(A)(1) (providing for financial sanctions for felony offenses, including restitution, and stating, “All restitution payments shall be credited against any recovery of economic loss in a civil action brought by the victim or any survivor of the victim against the offender”); R.C. 2929.28(A)(1) (same for misdemeanor sentences); R.C. 3770.99(A) (providing for “restitution to the state lottery commission of any moneys erroneously paid as a lottery prize award” to a person prohibited from claiming that award); R.C. 163.03 (requiring “restitution or reimbursement for any actual damage” caused by a state agency entering private property for the purpose of making a survey or other activities taken when appropriating property); R.C. 4725.53(B) (permitting the Ohio Optical Dispensers Board to discipline an optician by ordering the licensee to make “restitution to a person who has suffered a financial loss”).
[A] person who is convicted of a violation of this chapter or Chapter 1533. of the Revised Code or a division rule governing the holding, taking, buying, sale, or possession of an antlered white-tailed deer with a gross score of more than one hundred twenty-five inches also shall pay an additional restitution value that is calculated using the following formula:
Additional restitution value = ((gross score - 100)2 x $1.65).
The statute does not require ODNR to assess and collect the additional restitution value in a civil action; rather, assessing restitution is a matter for the court imposing sentence for a conviction. In fact, R.C. 1533.99(G) states,
A court that imposes sentence for a violation * * * may require the person who is convicted of or pleads guilty to the offense, in addition to any fine, term of imprisonment, seizure, and forfeiture imposed, to make restitution for the minimum value of the wild animal or animals illegally held, taken, or possessed as established under section 1531.201 of the Revised Code.
R.C. 1531.99(E) is nearly identical. And here, the sentencing court had already ordered restitution and the forfeiture of the animal in the criminal proceeding. Thus, ODNR’s imposing the additional restitution value is an additional penalty. See Paroline, — U.S. — ,
{¶ 47} Permitting ODNR to obtain restitution in an amount significantly greater than the state’s economic loss raises constitutional questions. Notably, the additional restitution value of $27,851.33 applies solely as the consequence of a conviction. R.C. 1531.201(B) and (C)(1). ODNR argues that permitting both recovery of the animal and an award of its full restitution value is central to the core purpose of R.C. 1531.201 to deter poaching by increasing the penalty to make sure the punishment fits the crime. Thus, ODNR itself considers the $27,851.33 restitution value to be a penalty.
{¶ 48} But ODNR’s position is not well taken, because a statute seeking to impose a second punishment for an offense in a subsequent proceeding violates the Double Jeopardy Clause. See, e.g., Hudson v. United States,
{¶ 49} The loss suffered by the state in this case is the deer, and the state received it in the prior judicial proceeding. In its brief, ODNR asserts that “trophy-size antlers could ‘easily net’ $20,000 on the black market,” and in an affidavit presented in support of ODNR’s motion for summary judgment, Jeffrey B. Collingwood, one of ODNR’s State Wildlife Investigators, averred that the animal Risner took “would be a highly coveted deer for a hunter particularly because of the unusually large and unique antler size.” ODNR, however, has recovered the antlers that made the deer so valuable, as well as the rest of the animal, and nothing in this record justifies an additional recovery of more than $27,000.
{¶ 50} The state is not permitted a double recovery. Accordingly, I would reverse the judgment of the court of appeals and reinstate the trial court order entering summary judgment for Risner.