THE STATE EX REL. PIZZA, PROS. ATTY., APPELLANT, v. REZCALLAH, APPELLEE.; THE STATE EX REL. PIZZA, PROS. ATTY., APPELLANT, v. TERRELL, APPELLEE.; THE STATE EX REL. PIZZA, PROS. ATTY., APPELLANT, v. GONZALES, APPELLEE.
Nos. 96-1894, 96-1895 and 96-1897
SUPREME COURT OF OHIO
Submitted October 8, 1997—Decided December 9, 1998.
84 Ohio St.3d 116 | 1998-Ohio-313
R.C. 3767.02 does not require proof of knowledge of, acquiescence to, or participation in the creation or perpetuation of a nuisance in order to find an owner of a nuisance guilty of the civil offense of “maintaining a nuisance.”- To the extent that
R.C. 3767.06(A) requires a trial court, upon a finding of a nuisance, to issue an injunction closing property against its use for any purpose for one year, and to the extent that it allows release from such injunction only through the filing or renewal of a bond in the full value of the property, the statute violates the Fourteenth Amendment Due Process Clause and the Fifth Amendment Takings Clause of the United States Constitution, and Section 19, Article I of the Ohio Constitution, when applied to an owner who did not negligently or knowingly acquiesce to, and did not participate in the creation or perpetuation of the nuisance. (Lindsay v. Cincinnati [1961], 172 Ohio St. 137, 15 O.O.2d 278, 174 N.E.2d 96, overruled.)
APPEALS from the Court of Appeals for Lucas County, Nos. L-95-298, L-95-362 and L-95-363.
Case No. 96-1894
{¶ 2} Defendant-appellee Mary Rezcallah owns a residence at 1137½ N. Erie Street in Toledo. She rented this residence to Heather Anderson during all times relevant to the case.
{¶ 3} The Toledo police began surveillance on the property in September 1995. The investigation culminated in the purchase of $20 of suspected crack cocaine (through the use of a confidential informant). A subsequent search on October 2, 1995 resulted in the seizure of $726, plastic baggies tied together, a scale, and razor blades.
{¶ 4} The following day, police mailed a letter to Rezcallah, informing her of the illegal drug activities at the residence. Rezcallah did not receive this letter until October 13, 1995. However, in the meantime, a neighbor told Rezcallah that police had been to the house. Rezcallah went to the premises to discuss the matter with Anderson, who told Rezcallah that the police had found “nothing” during the search.
{¶ 5} Rezcallah contacted the police October 4, 1995, and was informed that no arrests were made but that some might be forthcoming. Rezcallah also twice attempted to obtain a copy of the police report pertaining to the premises. She was told the report was not ready or could not be found.
{¶ 6} Police again conducted surveillance on the residence, and on October 10, 1995 purchased $20 worth of suspected cocaine at the residence. On October 13, Rezcallah received the police report the police had sent regarding the first investigation. On the same day, Rezcallah met with her attorney and prepared
{¶ 7} On the 19th, the day Anderson was required to vacate the premises, the police executed a second search warrant, seizing 23.17 grams of crack cocaine, $316, plastic baggies, razor blades, a phony pop can, and an Ameritech caller identification instrument. On the same day, the state filed a Complaint to Abate a Nuisance against Rezcallah, and the trial court issued a temporary restraining order allowing the premises to be padlocked by the police.1
{¶ 8} The state requested preliminary and permanent injunctions. On October 31, 1995, the court entered judgment in favor of Rezcallah on the injunctions and dismissed the complaint in its entirety. In so doing, the court held that in order to obtain an abatement order pursuant to
Case No. 96-1895
{¶ 9} Defendant-appellee Gilbert Terrell owns the property at 1315 Ironwood Avenue in Toledo. At all times relevant to this case, Julius Jones was an occupant and uninvited user of that residence.
{¶ 10} Terrell invited Jones to live at his residence in August 1994. After one month, however, Terrell took his house key from Jones and asked him to leave.
{¶ 11} Terrell was not able to permanently remove Jones from the premises and prior to the first police search had abandoned the residence, leaving it to Jones.
{¶ 12} In February 1995, Toledo Police Detective Jerry Gears received a complaint from an anonymous caller who informed him that drug sales were occurring at the Ironwood residence. Terrell had also reported Jones‘s illegal activities to the police both in person and over the phone. Based on these tips, the police had confidential informants purchase crack cocaine from the house on February 20 and March 7, 1995. The Toledo police executed a search warrant at the residence on March 12, 1995. The evidence they seized included forty-eight pieces of crack cocaine, one automatic revolver, cash, an Ohio driver‘s license, five shotgun shells, five or six .38 caliber shells, and two digital scales.
{¶ 13} Jones was arrested at the scene and was charged with aggravated trafficking, though he was never convicted. Terrell was not present at the residence when the search warrant was executed.
{¶ 14} Following this arrest Jones‘s illegal activities continued and Terrell again reported Jones to the Toledo police. Based upon the information supplied by Terrell, the police, using an informant, purchased $20 of crack cocaine from the residence. Based upon that purchase, the Toledo police executed a second search warrant on the premises on May 22, 1995. They seized crack cocaine weighing 2.2 grams. Jones again was present, and was arrested and charged with third-degree felony drug abuse. He was never convicted. Terrell was not present at the residence at the time of the search.
{¶ 16} The trial court issued a temporary injunction, finding the residence to be a nuisance. The police padlocked the premises.
{¶ 17} Following a hearing on the issuance of a permanent injunction, the trial court entered judgment dissolving the preliminary injunction, ordering removal of the padlock, and denying the state‘s motion for permanent injunction. The trial court found that Terrell had fully cooperated with the police in abating the nuisance, and that he had not acquiesced to or participated in felony drug sales on the property. The Sixth District Court of Appeals affirmed the decision of the trial court.
Case No. 96-1897
{¶ 18} Defendant-appellee Teresa Gonzales (now Boardman) owns the property at 953 Butler Street in Toledo. Her brother, John Kochanski, was the occupant of that residence at all times relevant to this case.
{¶ 19} Toledo police executed a search warrant on the residence on April 15, 1994, after a telephone complaint about drug sales, surveillance, and a purchase of $20 of crack cocaine from the residence by a confidential informant. The police seized marijuana, two crack pipes and another item of drug paraphernalia, and a telephone bill. Kochanski, at the time of the search, was arrested on charges of drug abuse and possession of drug paraphernalia.
{¶ 20} On September 10, 1994, following another complaint by neighbors and further surveillance, an undercover officer made two purchases of crack cocaine from the residence. Kochanski was present at, and orchestrated, both sales. Based upon the sales, Kochanski was arrested on two counts of aggravated trafficking. Two of Kochanski‘s cohorts, Keith Douglas and Tammy Holder, were
{¶ 21} Detective Delaney sent a letter dated April 22, 1994 to the residence, addressed to Gonzales, to notify her that drug sales were occurring on her property and what the consequences would be should the activities continue. Gonzales testified that she never saw the letter, and that she did not learn of the execution of the search warrant until June 1994. At that time she warned Kochanski that she would evict him if there was another incident. Gonzales also testified that she did not know of the September 1994 arrests, and that she never visited the residence after the execution of the search warrant on April 15, 1994. Detective Delaney testified that the residence had the reputation of being a crack house.
{¶ 22} The state subsequently filed a Complaint to Abate a Nuisance pursuant to
{¶ 23} The cases are before this court upon the allowance of discretionary appeals.
Julia R. Bates, Lucas County Prosecuting Attorney, Steven J. Papadimos and Bertrand R. Puligandla, Assistant Prosecuting Attorneys, for appellant.
Barkan & Robon and Cynthia G. Tesznar, for appellee Mary Rezcallah.
Gilbert Terrell, pro se.
Wesley M. Miller, Jr., for appellee Teresa Gonzales.
Betty D. Montgomery, Attorney General, Jeffrey S. Sutton, State Solicitor, and Simon B. Karas, Assistant Attorney General, urging reversal for amicus curiae, Ohio Attorney General.
MOYER, C.J.
{¶ 25} Two questions are presented. First, we must determine whether
{¶ 26} In answering the first question, we hold that
I
{¶ 27}
{¶ 28} Further,
{¶ 29} Whenever a nuisance is thought to exist, an action may be brought under
{¶ 31} Thereafter, the existence of a nuisance is to be determined “upon the trial of [a] civil action,” and, if the existence of a nuisance is admitted or established in that civil action, the court “shall” enter judgment that “perpetually enjoins the defendant and any other person from further maintaining the nuisance at the place complained of and the defendant from maintaining the nuisance elsewhere.”
{¶ 32} Pursuant to
{¶ 33} Whenever a permanent injunction issues against an owner of real property for maintaining a nuisance, a three hundred dollar tax shall also be
II
Statutory Interpretation
{¶ 34}
{¶ 35} Proof of an owner‘s knowledge, acquiescence, or participation is relevant, however, in determining which statutory remedies may be imposed once the owner is found guilty of maintaining a nuisance. Because
{¶ 36} To the contrary, the provisions of
{¶ 37} We have previously held that “it would be inappropriate to balance the equities or require the [state] to do equity in [a statutory] * * * injunction action because * * * injunctions which authorize a governmental agent to sue to enjoin activities deemed harmful by the General Assembly are not designed primarily to do justice to the parties but to prevent harm to the general public.” Ackerman v. Tri-City Geriatric & Health Care (1978), 55 Ohio St.2d 51, 57, 9 O.O.3d 62, 66, 378 N.E.2d 145, 149. Ackerman clearly states that “statutory injunctions should issue if the statutory requirements are fulfilled.” Id. at 57, 9 O.O.3d at 66, 378 N.E.2d at 149.
{¶ 38} Accordingly, the trial courts in the cases before us erred in dismissing the complaints alleging maintenance of a nuisance on the grounds that the state was unable to prove that the owners had knowledge of, acquiesced to, or participated in a nuisance on their property. The General Assembly has provided that if a nuisance, as defined in
{¶ 39} As discussed below, however, we hold that the imposition of a mandatory closure order pursuant to
III
Constitutionality of R.C. Chapter 3767 — Federal Constitution
{¶ 40} We find no constitutional infirmity in those portions of
{¶ 41} It bears emphasis that
{¶ 42} A forfeiture is “a divestiture of specific property without compensation; it imposes a loss by the taking away of some preexisting valid right without compensation.” Black‘s Law Dictionary (6 Ed.1990) 650. An order to close property “against its use for any purpose,” as mandated by
{¶ 43} Nor is the closure-order provision saved from constitutional infirmity by the availability of judicial release through the filing of a bond in the full value of the property. Deprivation of the use of resources equal to the value of the property is as much a taking as is deprivation of the use of the property itself. Further, as argued by appellee Rezcallah, an innocent owner defendant may often be financially incapable of filing such a bond. Accordingly, we hold that padlocking an owner‘s property, effectively closing it against all uses for a year, is a taking, albeit temporary in nature. The constitutional analysis therefore is the same for seizures resulting in a temporary closure order as it is for those resulting in a permanent forfeiture. See id.
{¶ 44} We acknowledge that not all forfeitures or temporary takings without compensation are constitutionally infirm. The United States Supreme Court has held in a long line of cases that a state may use its police power to enjoin a property owner from activities akin to public nuisances without offending either the Due Process or Takings Clause. This court has also upheld the validity of forfeitures and closure orders resulting from nuisance abatement actions. However, we find these Ohio cases to be of limited usefulness in determining the issues now before us.
{¶ 46} In Lindsay v. Cincinnati (1961), 172 Ohio St. 137, 15 O.O.2d 278, 174 N.E.2d 96, we decided a case which did involve the forfeiture of an innocent owner‘s property. However, upon reviewing that decision, we now reject its reasoning, and overrule it.
{¶ 47} In Lindsay, the court relied on a misinterpretation of the earlier United States Supreme Court decision in Grosfield v. United States (1928), 276 U.S. 494, 48 S.Ct. 329, 72 L.Ed. 670. In Lindsay, the court incorrectly determined that “[t]he constitutionality of such statutory provisions has been upheld by the Supreme Court of the United States in Grosfield v. United States * * * which was followed in Gabriel * * *.” Lindsay at 141, 15 O.O.2d at 280, 174 N.E.2d at 99.
{¶ 48} We reject this rationale for two reasons. First, Grosfield was based on an assumption that the padlocking order affecting the property was not imposed upon an “innocent” owner. Second, the court in Grosfield did not decide the constitutionality of the federal statute before it.
{¶ 49} The court in Grosfield specifically stated that “[t]he only question for our consideration is whether the evidence submitted to the district court is sufficient to justify the [padlock order].” Grosfield, 276 U.S. at 496, 48 S.Ct. at 330, 72 L.Ed. at 671. The court repeatedly emphasized that its decision was limited to the facts before it, and based its holding on a determination that there was sufficient evidence to support a finding of knowledge and acquiescence on the part
{¶ 50} Moreover, even under those facts, the Grosfield court limited its affirmance of the padlock order to situations where “the evidence furnish[es] reasonable ground for apprehending a repetition of such use.” Grosfield at 498, 48 S.Ct. at 331, 72 L.Ed. at 672. Thus, Lindsay‘s reliance on Grosfield in upholding the constitutionality of a forfeiture imposed against an innocent owner is misplaced. Consequently, we overrule Lindsay and look directly to precedent established by the United States Supreme Court.
{¶ 51} The law regarding seizures and forfeitures of property has received growing judicial attention in recent years, based, at least in part, on its increased governmental use. Though the federal courts have upheld forfeiture statutes even as applied to innocent owners in a variety of contexts, they have also consistently recognized in dicta or by express reservation of comment that there are factual situations in which forfeitures exercised against innocent owners will be held to violate constitutional standards. We believe that the three cases before us present such facts, and the application of the “effectual closing” provision of
{¶ 52} One of the questions that has been continually reserved in recent cases is whether it would be constitutionally permissible to seize property when the owner is without fault and did not consent to any use of the property by the offending third party. Though the question has not been addressed by recent cases, the United States Supreme Court held in Peisch v. Ware (1808), 8 U.S. 347 (4 Cranch 347), 2 L.Ed. 643, that trespassers’ acts cannot serve as the basis for a valid forfeiture of goods “[i]f, by private theft, or open robbery, without any fault on his [owner‘s] part, his property should be invaded * * *.” Id. at 364, 2 L.Ed. at 648.
{¶ 53} We follow the dictates of Peisch and hold that it is dispositive in one of the three cases before us. In case No. 96-1895, State ex rel. Pizza v. Gilbert Terrell, a criminal trespasser invaded the defendant‘s property and used that property to conduct illegal activities. The owner was without fault and did not consent to any use of his property by the third-party trespasser.
{¶ 54} While Peisch is dispositive in Terrell‘s case, we must look further to determine the constitutionality of applying
{¶ 55} In all three cases, the state relied on Bennis v. Michigan (1996), 516 U.S. 442, 116 S.Ct. 994, 134 L.Ed.2d 68, a recently decided United States Supreme Court decision, in support of its contention that all provisions of
{¶ 56} Our analysis of the decision in Bennis causes us to conclude that it is not controlling in the cases before us, for the following reasons:
{¶ 58} 2. In Bennis, the court emphasized that the Michigan nuisance abatement proceedings were equitable in nature, and that the trial court had discretion to implement, or refuse to implement a forfeiture in any given case. Id. at 452, 116 S.Ct. at 1000, 134 L.Ed.2d at 78; see, also, Bennis at 457-458, 116 S.Ct. at 1003, 134 L.Ed.2d at 82 (Ginsburg, J., concurring) (“[T]he [Michigan] Supreme Court stands ready to police exorbitant applications of the statute. * * * Michigan, in short, has not embarked on an experiment to punish innocent third parties. Nor do we condone any such experiment.” [Citations omitted.]).
{¶ 59}
{¶ 60} Because the existence of judicial discretion to determine whether a forfeiture was justified was important to the majority in Bennis, and because the Ohio statutory framework before us allows for no similar exercise of discretion, Bennis does not compel a holding that Ohio‘s
{¶ 62} In Calero-Toledo v. Pearson Yacht Leasing Co. (1974), 416 U.S. 663, 689, 94 S.Ct. 2080, 2094-2095, 40 L.Ed.2d 452, 471, the court stated that “it would be difficult to reject the constitutional claim of * * * an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property.” Where there is “no intentional wrongdoing, no departure from any prescribed or known standard of action, and no reckless conduct” and where the owner was not entirely “free to act or not, as it chose” because of legal and practical considerations, such as requirements of eviction law and the limits on self help potentials in evicting a criminal trespasser, infliction of a penalty is “so plainly arbitrary and oppressive as to be nothing short of a taking of [his/her] property without due process of law.” Southwestern Tel. & Tel. Co. v. Danaher (1915), 238 U.S. 482, 490-491, 35 S.Ct. 886, 888, 59 L.Ed. 1419, 1422.
{¶ 63} The records in these cases support a finding that each of the three defendants not only remained uninvolved in and originally unaware of the wrongful activity, but took reasonable measures to stop the proscribed use of his or her property upon discovering it. In fact, it is difficult to conceive of additional measures the defendants could have legally and safely taken which could have prevented or more quickly put an end to the illegal activities.
{¶ 65} The Bennis court recognized the “considerable appeal” of the argument that application of a forfeiture statute against an innocent owner is unfair. It concluded, however, that the force of that argument was reduced by the remedial effect of the Michigan forfeiture law. Bennis, 516 U.S. at 453, 116 S.Ct. at 1001, 134 L.Ed.2d at 79. Justice Thomas noted that sale proceeds from the forfeited car served the remedial goal of paying the state‘s costs in the matter. Bennis at 456, 116 S.Ct. at 1002-1003, 134 L.Ed.2d at 81, fn. (Thomas, J., concurring).
{¶ 66} In contrast, a closure order issued pursuant to
{¶ 67} Having determined that Bennis is not controlling here, we must independently analyze the question under the general principles of forfeiture law.
{¶ 68} The United States Supreme Court has held in a long line of cases that the state may use its police power to enjoin a property owner from activities akin to public nuisances without offending either the Due Process or Takings Clause. These cases were reviewed and clarified in Lucas. ” ‘[L]and use regulation does not effect a taking [under the federal Constitution] if it “substantially advance[s] legitimate state interests” * * *.’ ” Lucas at 1024, 112 S.Ct. at 2897, 120 L.Ed.2d at 818 (citing Nollan v. California Coastal Comm. [1987], 483 U.S. 825, 834, 107 S.Ct. 3141, 3147, 97 L.Ed.2d 677, 687).
{¶ 70} Even if a landlord did undertake to monitor his or her property, the mere act of surveillance is unlikely to generate any information that would provide sufficient grounds for eviction. Landlords are limited in the actions they may take against tenants engaged in illegal activities both by law and practical considerations. They are statutorily prohibited from entering leased residential property unannounced. See
{¶ 71} Landlords have no authority to conduct regular drug searches, nor may they break a lease based solely on unsubstantiated suspicions that the tenant is
{¶ 72} It is unclear what action the landlord could or should take to avoid forfeiture. The state is apparently not satisfied if the owner informs the police of the illegal activity or files criminal charges against the resident, as defendant Terrell had done. It apparently is not enough to initiate eviction proceedings, as defendant Rezcallah had done. Nor was the state satisfied with defendant Gonzales‘s attempt to investigate allegations of drug activity on her own. Once the state had information that illegal drug activities had taken place on the property, it had without regard to the owners’ efforts at investigation, reporting, or abatement, attempted to padlock their property. Hence, if owners report a tenant to the police and cooperate with them in investigating and prosecuting the tenant, thereby ending the illegal activity through appropriate and legal means, they have effectively admitted that the property is a nuisance and subjected themselves to the mandatory padlocking provisions of
{¶ 73} An additional effect of padlocking the property is that the owner is precluded from maintaining or repairing the property after the offending party has left the premises. This creates an increased risk that the property will further deteriorate and again become a nuisance. These effects and considerations undercut the state‘s argument that the mandatory closure provision of
{¶ 74} Further, we hold that because there is no intentional wrongdoing, no departure from any prescribed standard of action, and no reckless conduct, and because landowners are not completely free to act as they choose due to landlord-tenant laws and other limitations on self-help evictions, forfeiture under these circumstances is so arbitrary and oppressive as to be a taking without due process of law in violation of the
IV
Ohio Constitution
{¶ 75} We hold as a separate and independent basis for our decision that the mandatory closure-order provision of
{¶ 76} We begin our state-law analysis by reaffirming the premise that the law does not favor forfeiture. See, e.g., State v. Lilliock (1982), 70 Ohio St.2d 23, 25-26, 24 O.O.3d 64, 65-66, 434 N.E.2d 723, 725. “The law requires that we favor individual property rights when interpreting forfeiture statutes.” Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65 Ohio St.3d 532, 534, 605 N.E.2d 368, 369.
{¶ 77} Private property rights may be limited through the state‘s exercise of its police power when restrictions are necessary for the public welfare. Just as private property rights are not absolute, however, neither is the state‘s ability to restrict those rights. Before the police power can be exercised to limit an owner‘s control of private property, it must appear that the interests of the general public require its exercise and the means of restriction must not be unduly oppressive upon individuals. Froelich v. Cleveland (1919), 99 Ohio St. 376, 124 N.E. 212. Further, the free use of property guaranteed by the
{¶ 78} The mandatory closure provision of
{¶ 79} The closure provisions also fail for being unduly oppressive against an individual owner. Where an owner is subject to closure of property against all purposes for a year solely on the basis of the illegal acts of a third party over whom the owner has no legal means of control, the closure order is unduly oppressive. This is especially true where that owner has taken affirmative actions to proceed by reasonable means to prevent the third party from continuing the illegal acts. Therefore, the mandatory closure-order provision of
V
{¶ 80} For the foregoing reasons, we reverse the judgments of the court of appeals and remand these causes to the trial courts for disposition consistent with this opinion. The trial courts are to determine whether, without regard to the knowledge, acquiescence, or participation of the defendant owners, the owners are guilty of maintaining a nuisance as defined in
Judgments reversed
and causes remanded.
F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.
FORD, J., concurs in part and dissents in part.
COOK, J., concurs in part and dissents in part.
DOUGLAS, J., dissents.
DONALD R. FORD, J., of the Eleventh Appellate District, sitting for RESNICK, J.
FORD, J., concurring in part and dissenting in part.
{¶ 81} Although I concur with the well-reasoned rationale of the majority opinion with respect to the second paragraph of the syllabus, I must respectfully dissent with regard to the analysis and conclusion of the first paragraph of the
{¶ 82} In dictum in State ex rel. Miller v. Anthony (1995), 72 Ohio St.3d 132, 139, 647 N.E.2d 1368, 1374, quoting State ex rel. Freeman v. Pierce (1991), 61 Ohio App.3d 663, 671, 573 N.E.2d 747, 752, this court unanimously stated:
” ‘[I]n order to obtain an abatement order pursuant to
R.C. 3719.10 and3767.02 et seq., it is necessary for the relator to prove by clear and convincing evidence that the defendant had knowledge of and either acquiesced to or participated in a felony violation ofR.C. Chapter 2925 or3719 on the property.’ ”
{¶ 83} Moreover, in interpreting
“Clearly, there would be no reason for including evidentiary presumptions in the statute unless it were necessary that the [state] prove these elements. Therefore, the [state] must show that the defendant knew of the drug offenses, and either participated in them, or acquiesced in their occurrence. * * * Without such a requirement, the statute would seem to authorize any resident of the county to trespass on an innocent landowner‘s property, commit a drug offense there, and then commence proceedings to have the property declared a nuisance. Such an absurd result could not have been intended by the legislature.” (Emphasis and footnote deleted.) Freeman, 61 Ohio App.3d at 670-671, 573 N.E.2d at 752.
{¶ 84} In the present cases, the court of appeals affirmed the judgment in favor of each appellee on the basis that in order to obtain an order of abatement against these appellees, the state must prove by clear and convincing evidence that each owner had knowledge of and either acquiesced to or participated in (creating or maintaining) the nuisance. Parenthetically, this writer concludes that without a predicate of such evidence of knowledge, acquiescence, or participation on the part
COOK, J., concurring in part and dissenting in part.
{¶ 85} The majority holds that
I. Presumption of Constitutionality
{¶ 86} It is important to emphasize that appellees carry a heavy burden in arguing that
II. Federal Case History
{¶ 87} A long line of federal cases supports the conclusion that property owners who are unaware that their property is being used for illegal purposes, and
{¶ 88} In Dobbins‘s Distillery v. United States (1877), 96 U.S. 395, 24 L.Ed. 637, the U.S. Supreme Court considered a case where a party leased both real and personal property in order to operate a distillery. In conducting that business, the lessee was found to have kept false books and to have defrauded the federal government of taxes. As a result, the government seized the leased business property and forfeited it. The owner fought the forfeiture on grounds that he had no knowledge of the possessor‘s illegal activities. The court upheld the forfeiture, stating:
“Cases often arise where the property of the owner is forfeited on account of the fraud, neglect, or misconduct of those intrusted with its possession, care, and custody, even when the owner is otherwise without fault * * * and it has always been held * * * that the acts of [the possessor] bind the interest of the owner * * *, whether he be innocent or guilty, and that * * * [the owner] impliedly submits to whatever the law denounces as a forfeiture attached to the [property] by means of [the possessor‘s] unlawful or wanton misconduct.” Id. at 401, 24 L.Ed. at 639.
{¶ 90} The Supreme Court considered the plight of another innocent owner in Van Oster v. Kansas (1926), 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354. In that case, the court again upheld the forfeiture, stating:
“It is not unknown, or indeed uncommon, for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it. * * * [C]ertain uses of property may be regarded as so undesirable that the owner surrenders his control at his peril.” Id. at 467, 47 S.Ct. at 134, 71 L.Ed. at 358.
{¶ 91} In Calero-Toledo v. Pearson Yacht Leasing Co. (1974), 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452, the Supreme Court again dealt with facts similar to those in the prior cases and the cases at bar. In Calero-Toledo, the court reviewed the cases cited above, noting that “the innocence of the owner of property subject to forfeiture has almost uniformly been rejected as a defense.” Id. at 683, 94 S.Ct. at 2092, 40 L.Ed.2d at 468. Citing the “legitimate governmental interests” served by the statute, the court concluded that the assertions of unconstitutionality “squarely collide[d]” with “the long line of this Court‘s decisions” finding such
{¶ 92} Finally, as recently as 1996, the Supreme Court arrived at the same conclusion in Bennis v. Michigan (1996), 516 U.S. 442, 116 S.Ct. 994, 134 L.Ed.2d 68. In that case, Mrs. Bennis jointly owned a vehicle with her husband who, without her knowledge, used it to solicit prostitution. A Michigan court ordered the vehicle forfeited as a public nuisance, notwithstanding Mrs. Bennis‘s part ownership of it and her lack of knowledge regarding her husband‘s activities. The Bennis court found that the forfeiture violated neither the Due Process Clause of the
{¶ 93} The majority first attempts to distinguish Bennis by pointing out that Mrs. Bennis conceded her car was subject to forfeiture and merely sought compensation for her loss; thus, no analysis of the propriety of the forfeiture was necessary. But the Supreme Court “granted certiorari in order to determine whether Michigan‘s abatement scheme ha[d] deprived [Mrs. Bennis] of her interest in the forfeited car without due process * * * or ha[d] taken her interest for public use without compensation.” Bennis, 516 U.S. at 446, 116 S.Ct. at 998, 134 L.Ed.2d at 74. It then launched a lengthy historical analysis, citing the cases summarized supra in support of the theory that an innocent owner may constitutionally have property forfeited due to the illegal acts of its user. It appears, then, that although the court did acknowledge Mrs. Bennis‘s acquiescence to the forfeiture, that fact made little or no difference in its analysis. There is nothing in the opinion to suggest that, had this factor been otherwise, the court would have ruled contrary to long-existing federal precedent. Therefore, I do not find this a valid reason for distinguishing Bennis.
{¶ 94} The majority next distinguishes Bennis on the fact that the Michigan court had discretion in ordering the forfeiture, whereas Ohio courts do not. Though the U.S. Supreme Court found some significance in this fact, it noted the discretion primarily to emphasize the equitable nature of the action. Id. at 452, 116 S.Ct. at 1000, 134 L.Ed.2d at 78. Likewise, these actions are equitable. In
{¶ 95} The third point on which the majority distinguishes Bennis is that, in that case, no showing was ever made that Mrs. Bennis took any affirmative action to prevent or abate the illegal use of her vehicle. The majority goes to great lengths to explain the impossibility of owners’ exerting foolproof control over leased or loaned property, and the difficulties involved in abating illegal uses once discovered. One must wonder what the majority would suggest Mrs. Bennis have done to anticipate the use to which her husband would put their vehicle. One must also ask if there would not be even greater difficulty in abating the illegal use of property where the wrongdoer actually owns a half interest in that property? Requiring Mrs. Bennis to discover and abate the nuisance in her case seems an even less reasonable expectation than requiring appellees in these cases to do so. Yet the U.S. Supreme Court upheld the forfeiture in Bennis, finding that it was not violative of the
{¶ 96} In making this third distinction, the majority also cites language from Calero-Toledo, which states, “it would be difficult to reject the constitutional claim of * * * an owner who proved not only that he was uninvolved in and unaware of
{¶ 97} The fourth point on which the majority distinguishes Bennis is that the forfeiture of the vehicle in that case served a remedial purpose. Proceeds from the sale of the vehicle helped to pay the state‘s costs in prosecuting the action. Bennis, 516 U.S. at 456, 116 S.Ct. at 1002, 134 L.Ed.2d at 81 (Thomas, J., concurring). The majority in these cases concludes that the force of Mrs. Bennis‘s constitutional challenges was diminished in light of this remedial effect, and that padlocking appellees’ houses for a year cannot possibly serve such a purpose.
{¶ 98} But padlocking appellees’ houses in these cases serves purposes beyond mere punishment. In fact, this court has found such orders to be preventive rather than punitive. Miller, 72 Ohio St.3d 132, 647 N.E.2d 1368, at paragraph two of the syllabus. In Miller, we stated that “the provision requiring the imposition of the closing order acts to restore safety in the area where the drug nuisance is located. The purpose of this provision is to ensure the abatement through non-use of the property for one year.” Id. at 138, 647 N.E.2d at 1373. Also, such orders “may have the desirable effect of inducing [owners] to exercise greater care in transferring possession of their property.” Calero-Toledo, 416 U.S. at 688, 94 S.Ct. at 2094, 40 L.Ed.2d at 471. If, as the majority suggests, the Bennis court found the remedial effect of selling a $600 car to help defray the state‘s costs sufficient reason
{¶ 99} The majority painstakingly attempts to distinguish the precedent set by Bennis. I do not believe the distinctions noted are sufficient to overcome that authority, particularly in light of the federal precedent discussed above and the presumption of constitutionality afforded all statutes. I believe Bennis is controlling here, and that the majority errs in dismissing its influence.
III. Case No. 96-1895
{¶ 100} The majority finds the case of appellee Terrell a special situation and easily disposes of it on grounds different from that of the cases of appellees Rezcallah and Gonzales. I believe, however, that Bennis controls all three cases. The majority paints a picture of all three appellees as innocent owners, Terrell being the least culpable of all. The court likens Terrell‘s situation to one in which property is stolen from an owner, rather than leased or borrowed, and it cites one-hundred-ninety-year-old language stating, “If, by private theft, or open robbery, without any fault on [the owner‘s] part, his property should be invaded, * * * the law cannot be understood to punish him with the forfeiture of that property.” (Emphasis added.) Peisch v. Ware (1808), 8 U.S. 347 (4 Cranch 347), 364, 2 L.Ed. 643, 648.
{¶ 101} Even assuming the quoted language in Peisch represents good law and constitutes a valid exception to all the above cited cases, I do not believe it sufficient to dispose of Terrell‘s case, as I do not believe Terrell is “without fault.” The facts cited by the majority disclose that Terrell‘s property was not stolen. Terrell invited a guest, Julius Jones, to live with him. Eventually, he asked Jones to leave. Jones did leave, but continually returned without Terrell‘s consent. Finally, as the majority puts it, Terrell “abandoned the residence, leaving it to Jones.”
{¶ 102} Federal courts have not clearly carved out any exception to forfeiture law for owners whose property is taken and used illegally without any fault or knowledge on their part. If, in fact, there is a valid exception, Terrell does not fit the bill. The fact that Terrell sought to have Jones permanently removed from his property may place him on the same level as a landlord who attempts an eviction, but not on the same level as one who had no knowledge his property had been taken. For this reason, I believe Terrell is subject to the same law as Rezcallah and Gonzales and must stand or fall on the same ground. Because I believe this ground was elucidated in Bennis, I respectfully disagree with the majority‘s determination that Terrell‘s rights under the Due Process Clause of the
IV. Section 19, Article I of the Ohio Constitution
{¶ 103} The majority also concludes that
{¶ 104} Although the language differs, the Takings Clauses of both the
{¶ 105} Even in analyzing the
{¶ 106} Here, the government was prompted to take action due to the illegal activities of individuals using the appellees’ properties. The necessity arose as a result of someone‘s culpable conduct rather than some governmentally imposed goal; therefore, the situation in these cases is not a typical taking.
{¶ 107} Additionally, these cases do not present the typical takings scenario because, unlike other takings cases, here the owner has the option of posting bond to avoid the lost use of the property.
{¶ 108} Once again, in light of the presumption of constitutionality afforded all statutes, appellees bear the heavy burden of demonstrating that
V. Lindsay v. Cincinnati
{¶ 110} In overruling the Lindsay decision, the majority points out that the court in that case misconstrued the holding in Grosfield v. United States (1928), 276 U.S. 494, 48 S.Ct. 329, 72 L.Ed. 670. Lindsay relied on Grosfield to support the conclusion that it was constitutional to subject an innocent owner‘s property to forfeiture. Lindsay, 172 Ohio St. at 141, 15 O.O.2d at 280, 174 N.E.2d at 99. I agree that Grosfield does not stand for this proposition, as the owner in that case was found to bear some culpability. Grosfield, 276 U.S. at 498, 48 S.Ct. at 331, 72 L.Ed. at 672. To this extent, the cite in Lindsay to Grosfield is error. But Grosfield was not the only authority Lindsay cited. In arriving at its conclusion, the Lindsay court also relied on Goldsmith-Grant and Dobbins‘s Distillery, both discussed above, along with other U.S. Supreme Court decisions. Lindsay, 172 Ohio St. at 139-140, 15 O.O.2d at 280, 174 N.E.2d at 99. Such reliance was proper in that case, just as it is in these cases, and the ultimate conclusion in Lindsay was correct under the precedent available both then and now.
{¶ 111} It is interesting to note that in Lindsay, this court repeatedly emphasized the role of the legislature in determining issues of forfeiture. That case recognized the legislature‘s “large discretion” in determining “not only what the interests of the public require, but what measures are necessary for the protection of such interests.” Id. at 139, 15 O.O.2d at 279, 174 N.E.2d at 98. The court noted that forfeiture, as applied to an innocent owner, is a “question of public policy
VI. Conclusion
{¶ 112} The legislature has set forth a statutory framework that serves a legitimate, preventive purpose. That framework cannot be avoided without a showing that it is unconstitutional beyond any reasonable doubt. Appellees have failed to make that showing here. For this reason, I respectfully dissent from the majority‘s conclusion that the statute is violative of the