Lead Opinion
In each of the three cases before us a non-owner resident was arrested for conduct that violated felony drug laws while occupying residential property owned by one of the appellees herein. In all three cases, it is undisputed that the appellee property owners neither acquiesced to nor participated in the drug activities that took place on their property. Further, the record indicates that all three owners acted in good faith, taking affirmative action to investigate allegations and to remove the offending residents upon discovering the illegal activity. The state nonetheless filed a Complaint to Abate a Nuisance, pursuant to R.C. Chapter 3767, against each owner.
Two questions are presented. First, we must determine whether R.C. 3767.02 requires a finding of acquiescence to or participation in the establishment or perpetuation of a nuisance as a necessary element in a civil action against a property owner for maintaining a nuisance. Second, we must determine whether, in the absence of such a requirement, the enforcement of the nuisance abatement statutes of R.C. Chapter 3767 against an innocent property owner is constitutional.
In answering the first question, we hold that R.C. 3767.02 does not require a finding of acquiescence to or participation in the creation or perpetuation of a nuisance on an owner’s property in order to find an owner guilty of maintaining a nuisance. As to the second question, we hold that 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.
Statutory Scheme
R.C. 3767.02 provides that “[a]ny person who uses, occupies, establishes, or conducts a nuisance * * *, and the owner * * * of any interest in such nuisance * * * is guilty of maintaining a nuisance and shall be enjoined as provided in sections 3767.03 to 3767.06, inclusive, of the Revised Code.” (Emphasis added.) A nuisance can be proven either by admission or establishment in a civil action as provided for in R.C. 3767.03, or by a finding of guilt in a criminal action that establishes a nuisance. R.C. 3767.06; 3767.11.
Further, R.C. 3719.10 provides that “[premises or real estate, including vacant land, on which a felony violation of Chapter 2925. [criminal drug offenses] or 3719. [Uniform Controlled Substances Act] of the Revised Code occurs constitute a nuisance subject to abatement pursuant to Chapter 3767. of the Revised Code.”
Whenever a nuisance is thought to exist, an action may be brought under R.C. 3767.03 “to abate the nuisance and to perpetually enjoin the person maintaining the nuisance from further maintaining it.” At the same time, the complainant may file an application for a temporary injunction pursuant to R.C. 3767.04. If, following a hearing, the judge is satisfied that the allegations of the complaint are sustained, and unless the owner or person in control of the nuisance has satisfied the court that the nuisance has been abated or that the owner acted immediately to enforce his or her rights under R.C. 3767.10,
The scope of this temporary closure order is limited to the prevention of prohibited activity and does not authorize the court to order an “effectual closing * * * against its use for any purpose” (R.C. 3767.06[A]) via padlocking or otherwise. Even if the conditions for issuance of a temporary closure order have been met, the court may refrain from entering a closure order or may discharge an order already entered if the owner posts a bond for the full value of the property and fulfills the other requirements listed in R.C. 3767.04(C).
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
Pursuant to R.C. 3767.06(A), where the owner has not provided a bond prior to the trial on the merits, and where no prior closure order was issued against use of the property, the order also “shall” direct closure of the real property against use for any purpose for one year. R.C. 3767.06(A) reads in part: “The order also shall require the renewal for one year of any bond furnished by the owner of the real property under section 3767.04 of the Revised Code; if a bond was not so furnished, shall continue for one year any closing order issued at the time of granting the temporary injunction; or, if a closing order was not then issued, shall include an order directing the effectual closing of the place where the nuisance is found to exist against its use for any purpose and keeping it closed for a period of one year unless sooner released.”
Whenever a permanent injunction issues against an owner of real property for maintaining a nuisance, a three hundred dollar tax shall also be imposed. R.C. 3767.08. The tax, however, may not be imposed if at the time the permanent injunction is issued, the owner satisfies the court that the nuisance complained of has been permanently abated. R.C. 3767.08.
II
Statutory Interpretation
R.C. 3767.02, which defines the offense of maintaining a nuisance, is clear and unambiguous and does not include a requirement of knowledge, acquiescence, or participation on the part of an owner of the property deemed to be a nuisance. We thus hold that R.C. 3767.02 does not require proof of acquiescence to or participation in the creation of a nuisance or the conduct constituting a nuisance in order to find an owner of a nuisance guilty of the civil offense of “maintaining a nuisance.”
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 R.C. Chapter 3767 provides exceptions to the imposition of a temporary closing order at the preliminary injunction stage, and prevents imposition of a tax against property owners who have abated the nuisance prior to the completion of the civil action, these remedies may not be applied against an innocent owner who has acted in
To the contrary, the provisions of R.C. 3767.06 provide no exceptions by which a good-faith owner of real property may avoid an order of abatement, a permanent injunction against further maintaining the nuisance, or either the continuance of a closure order already in effect or a mandatory one-year “effectúal closing” of property against all uses where no bond was previously provided by the owner and no prior closure order was issued. Under the statutory scheme these orders must issue irrespective of whether a defendant property owner acquiesced to or participated in the creation or perpetuation of the nuisance and irrespective of whether the nuisance has been abated.
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),
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 R.C. 3719.10 or 3767.01(C), was admitted or established under R.C. 3767.11 or 3767.03, the courts were statutorily required to enter a judgment entry, including an order of abatement and a permanent injunction against the owners irrespective of their degree of culpability in the creation or perpetuation of the nuisance.
As discussed below, however, we hold that the imposition of a mandatory' closure order pursuant to R.C. 3767.06(A) would be unconstitutional as applied to these defendants.
Ill
Constitutionality of R.C. Chapter 3767 — Federal Constitution
We find no constitutional infirmity in those portions of R.C. Chapter 3767 that grant the court discretion in the imposition of various remedies. We further find that there is no constitutional bar to the mandatory imposition of an abatement order or a permanent injunction barring the defendant from “further maintaining
It bears emphasis that R.C. 3767.06(A) mandates the issuance of an order directing the closure of property upon which a nuisance has been maintained against its use for any purpose. The statute does not allow for judicial discretion in the imposition of the order, nor does it require proof of any knowledge or culpability on the part of the property owner before it may be imposed. Release from the closure order may be obtained only where the owner files a bond for the full value of the property, and pays all costs, and the owner immediately abates the nuisance, and if the court is satisfied of the owner’s good faith. R.C. 3767.04(C).
■ 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 R.C. 3767.06(A), renders the owner’s property economically idle for a year. In Lucas v. South Carolina Coastal Council (1992),
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,
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.
In Gabriel Bldg. Co. v. State ex rel. Birrell (1932),
In Lindsay v. Cincinnati (1961),
In Lindsay, the court relied on a misinterpretation of the earlier United States Supreme Court decision in Grosfield v. United States (1928),
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.
The court in Grosfield specifically stated that “[tjhe only question for our consideration is whether the evidence submitted to the district court is sufficient to justify the [padlock order].” Grosfield,
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 R.C. 3767.06(A) under these circumstances would constitute an unconstitutional seizure and forfeiture of property in violation of the federal Takings Clause and Due Process Clause.
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),
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.
While Peisch is dispositive in Terrell’s case, we must look further to determine the constitutionality of applying R.C. 3767.06(A) to Gonzales and Rezeallah. Both Gonzales and Rezeallah consented to some use of their property by the offending third party, though they did not acquiesce to or participate in the specific use that created the nuisance.
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:
1. Mrs. Bennis conceded that the car she owned with her husband was subject to forfeiture. She argued only that she should be compensated for her interest. Thus, the court was not required to evaluate the propriety of the forfeiture itself. See Bennis at 453,
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,
R.C. 3767.03 describes the nuisance abatement proceedings authorized by R.C. Chapter 3767 as being equitable in nature, as did the Michigan statute at issue in Bennis. However, unlike Michigan law, Ohio law leaves a trial court no discretion in imposing closure orders upon finding the existence of a nuisance. As discussed, supra, we have previously held that statutory injunctions should issue without regard to traditional equitable considerations if statutory requirements are fulfilled. See Ackerman v. Tri-City Geriatric & Health Care,
3. Mrs. Bennis made no showing that she took any affirmative actions to prevent the use of her vehicle for illegal purposes, or to abate illegal uses. In contrast, there is evidence to suggest that Rezeallah, Gonzales, and Terrell all took affirmative actions to determine whether illegal activity was occurring, to notify and/or cooperate with police in investigating and terminating the illegal activities, and to use legal means available to them to remove the offenders from the property and abate the nuisance in a timely fashion.
In Calero-Toledo v. Pearson Yacht Leasing Co. (1974),
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.
4. The remedial purposes purportedly served by the forfeiture in Bennis are not served by an order padlocking the real property of an innocent owner against all purposes for a year.
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,
Having determined that Bennis is not controlling here, we must independently analyze the question under the general principles of forfeiture law.
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 Clause 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,
The state argues that the mandatory closure and bonding provisions of R.C. 3767.06(A) advance the state’s interest in protecting the public from illegal drug activity by providing incentive to a property owners to actively monitor then-property, and to prevent the recurrence of felony drug transactions on then-property. There is no question that the prevention of illegal drug activity is a legitimate state interest. We hold, however, that the mandatory closure provisions of R.C. 3767.06(A) do not substantially advance this interest when imposed against property owners who have not acquiesced to or participated in the illegal activity, and who have promptly abated the nuisance upon its discovery.
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 ténants engaged in illegal activities both by law and practical considerations. They are statutorily prohibited from entering leased residential property unannounced. See R.C. 1923.02 and 5321.03. While R.C. 3767.10 purports to authorize an owner to immediately enter leased premises without process of law where the premises are used for “purposes of lewdness, assignation or prostitution,” the General Assembly has not authorized immediate entry when the premises are being used to conduct illegal drug activities. Even if the statute did contain such an authorization, and assuming a landlord was able to
Landlords have no authority to conduct regular drug searches, nor may they break a lease based solely on unsubstantiated suspicions that the tenant is conducting illegal activities. Moreover, landlords have no reliable way of predicting which, if any, prospective tenants may later become involved in illegal drug activities on the landlord’s property. Appellee Rezcallah persuasively argues that even without these legal restrictions, her limited resources for investigating or acting upon any suspicion of drug activity on her property make her “no match for the illegal drug trade.”
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 R.C. 3767.06(A). Rather than substantially advancing the goal of encouraging property owners to monitor their property and take all legal steps to abate illegal activities thereon, this provision may actually discourage owners from reporting illegal activity.
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 R.C. 3767.06(A) substantially furthers the goal of prevention and speedy abatement of nuisances. We conclude that the imposition of a closure order pursuant to R.C. 3767.06(A) effectively closing real property against its use for any purpose for a period of one year does not advance a legitimate state interest when enforced against an innocent owner and that the state’s interest does not outweigh the owner’s interest in the economic use of his or her property. Therefore, the mandatory closure order provisions of R.C. 3767.06(A) violate the Takings Clause of the
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 Fourteenth Amendment to the United States Constitution.
IV
Ohio Constitution
We hold as a separate and independent basis for our decision that the mandatory closure-order provision of R.C. 3767.06(A) is unconstitutional as applied to these defendants under Section 19, Article I of the Ohio Constitution, which prdvides that “[p]rivate property shall ever be held inviolate, but subservient to the public welfare.”
We begin our state-law analysis by reaffirming the premise that the law does not favor forfeiture. See, e.g., State v. Lilliock (1982),
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),
The mandatory closure provision of R.C. 3767.06(A) fails these requirements. We have already explained in the context of the United States Constitution that the restrictions imposed by this statute do not substantially advance the state’s interest in preventing and abating illegal activities and that they may even serve to produce the opposite effect. For the same reasons, we now hold that the
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 R.C. 3767.06(A) is an improper exercise of police power under Section 19, Article I of the Ohio Constitution when it is imposed and enforced against a property owner who lacks any culpability in the creation or perpetuation of a nuisance on the property.
Y
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 R.C. 3767.02. If any owner is found guilty of maintaining a nuisance, as per the statute, the trial court shall impose an abatement order and permanent injunction in accordance with R.C. 3767.06. However, if, despite a finding of guilt, the court determines that a defendant owner acted in good faith, was innocent of any acquiescence to or participation in the conduct establishing the nuisance, and took prompt action to abate the nuisance, no closure order shall be issued under R.C. 3767.06(A) and no tax shall be imposed pursuant to R.C. 3767.09.
Judgments reversed and causes remanded.
Notes
. R.C. 3767.10 voids any lease or other title held by a tenant or occupant when the property is used for “purposes of lewdness, assignation, or prostitution.” This statute does not create an automatic right of eviction when a tenant or occupant uses the property to conduct drug activities. Thus, a landlord is bound under the law to follow normal eviction proceedings as outlined in R.C. 1923.02 and R.C. 5321.03.
Concurrence in Part
concurring in part and dissenting in part. The majority holds that R.C. 3767.06(A) violates the U.S. and Ohio Constitutions when applied to property owners who are unaware of an illegal use of their property, and who make reasonable attempts to abate that use once discovered. In its opinion, the majority overrules a prior decision of this court and distinguishes a recent U.S. Supreme Court case reaching a contrary conclusion. I believe the majority’s approach disregards binding federal precedent and fails to accord the necessary presumption of constitutionality to the statute. For these reasons, I dissent from Parts III and IV of the majority’s opinion.
I. Presumption of Constitutionality
It is important to emphasize that appellees carry a heavy burden in arguing that R.C. 3767.06(A) is unconstitutional. It is settled beyond argument that statutes enjoy a strong presumption of constitutionality. State v. Collier (1991),
II. Federal Case History
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 who have not in any way participated in that use, may still be required to forfeit their property despite their apparent innocence. This conclusion has typically been reached on either one of two theories. The first theory is that the property itself has committed the offense. The second is that the owner necessarily bears some responsibility for entrusting the property to someone who would use it illegally. See Austin v. United States (1993),
In Dobbins’s Distillery v. United States (1877),
“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,
Forty-four years later, the U.S. Supreme Court considered the case of Goldsmith-Grcmt Co. In that case, an auto dealer retained title to a sold vehicle as security for the purchase price. The purchaser thereafter used the vehicle to transport and conceal goods with intent to evade taxes. The violated statute provided for forfeiture .of the car. The innocent dealer argued the forfeiture violated his constitutional right to due process. When faced with this constitutional challenge, the court conceded there was strength in the argument. Goldsmith-Grant Co. v. United States (1921),
The Supreme Court considered the plight of another innocent owner in Van Oster v. Kansas (1926),
“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,
In Calero-Toledo v. Pearson Yacht Leasing Co. (1974),
Finally, as recently as 1996, the Supreme Court arrived at the same conclusion in Bennis v. Michigan (1996),
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,
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,
In making this third distinction, the majority also cites language from CaleroToledo, 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 the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property.” Calero-Toledo,
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,
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,
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
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),
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.”
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
IV. Section 19, Article I of the Ohio Constitution
The majority also concludes that R.C. 3767.06(A) violates Section 19, Article I of the Ohio Constitution. Again, I respectfully disagree.
Although the language differs, the Takings Clauses of both the U.S. and Ohio Constitutions essentially provide that no private property shall be taken for public use without just compensation. “[W]here the provisions are similar and no persuasive reason for a differing interpretation is presented, this court has determined that protections afforded by Ohio’s Constitution are coextensive with those provided by the United States Constitution.” State v. Robinette (1997),
Even in analyzing the Ohio Constitution independently, however, I would arrive at the same conclusion. First, these cases do not present the typical takings situation. The majority uses the terms “forfeiture” and “takings” interchangeably. I believe this is error. While the padlocking order is not a forfeiture to the extent that it is preventive rather than punitive, see Miller,
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.
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. R.C. 3767.06(A) provides that an owner whose property is subject to a one-year padlock order may post bond in the amount of “the full value of the real property” to prevent the closure from carrying forth. R.C. 3767.04(C). The majority dismisses this option as a taking equivalent to the taking of the property because the value is the same and some owners cannot afford to post such a bond. But the cost of posting a bond is only a percentage of
Once again, in light of the presumption of constitutionality afforded all statutes, appellees bear the heavy burden of demonstrating that R.C. 3767.06(A) is unconstitutional beyond all reasonable doubt. Given this fact and the above discussion, I do not believe appellees have proven that the statute violates the Takings Clause of the Ohio Constitution. I therefore disagree with the majority’s finding in this regard.
V. Lindsay v. Cincinnati
In arriving at its conclusion that R.C. 3767.06(A) violates the U.S. and Ohio Constitutions, the majority also wishes to overrule the prior decision of this court in Lindsay v. Cincinnati (1961),
In overruling the Lindsay decision, the majority points out that the court in that case misconstrued the holding in Grosfield v. United States (1928),
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,
VI. Conclusion
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 Fifth Amendment Takings Clause and the Fourteenth Amendment Due Process Clause of the U.S. Constitution, and Section 19, Article I of the Ohio Constitution.
Concurrence in Part
concurring in part and dissenting in part. 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 syllabus. Therefore, I would affirm the judgments of the court of appeals holding that, pursuant to R.C. 3767.05(A), knowledge of and either acquiescence or participation in the nuisance on the part of an absentee landowner is required to find one guilty of maintaining a nuisance under R.C. 3767.02.
In dictum in State ex rel. Miller v. Anthony (1995),
“ ‘[I]n order to obtain an abatement order pursuant to R.C. 3719.10 and 3767.02 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 of R.C. Chapter 2925 or 3719 on the property.’ ”
Moreover, in interpreting R.C. 3767.05(A), the Freeman court explained:
“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,
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 of parties, such as these appellees, there is no statutory ground upon which to impose the sanctions set forth in various relevant sections in R.C. Chapter 3767. Further, the reversals mandated by the majority amount to somewhat of a redundancy because it appears that the trial courts in these appeals have already determined that appellees were not guilty of maintaining the respective nuisances. Thus, I would affirm the decisions of the court of appeals.