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State v. Walker10/21/2005
o App.3d 178, 183, 594 N.E.2d 129 (in an action brought against a city and city officials for seizing dogs owned by the plaintiff, the court of appeals held that summary judgment for the defendants was improper due to factual issues about neglect).
{ } Finally, R.C. 951.11 grants a possessory lien in favor of individuals who find animals at large in violation of R.C. 951.01 or 951.02. Certain due process procedures apply, and there is also an opportunity under R.C. 951.12 for owners or keepers to prove that the escape was without their knowledge or fault. Again, none of these procedures were followed in this case.
{ } As we mentioned, Walker claims that the trial court's taking of the bears was an in rem forfeiture that constituted an excessive fine under the Eighth Amendment.
{ } "Statutory in rem forfeitures are confiscations of property rights based on improper use of the property, regardless of whether the owner has violated the law. * * * The property to which they apply is not contraband, * * * nor is it necessarily property that can only be used for illegal purposes. The theory of in rem forfeiture is said to be that the lawful property has committed an offense. * * *
{ } "However the theory may be expressed, * * * the taking of lawful property must be considered in whole or in part * * * punitive. Its purpose is not compensatory, to make someone whole for injury caused by unlawful use of the property. * * * Punishment is being imposed, whether one quaintly considers its object to be the property itself, or more realistically regards its object to be the property's owner." Austin v United States (1993), 509 U.S. 602, 624-35, 113 S.Ct. 2801, 2813-14, 125 L.Ed.2d 488 (Scalia, concurring in part and concurring in the judgment).
{ } The State claims that in rem forfeiture is not applicable in this case because the bears were not the offender; rather, the offense was Walker's failure to confine the bears. The State is incorrect. In the first place, the "offense" involved in this case was failure to confine a dog. Walker could possibly have been charged with an offense based on the bears' escape, but that did not happen. The State could also have filed a forfeiture action, but that did not happen, either.
{ } Furthermore, in typical in rem forfeiture situations, the property does not commit offenses, because the property is usually inanimate. For example, in State v. Casalicchio (1991), 58 Ohio St.3d 178, 569 N.E.2d 916, the State petitioned the trial court for forfeiture of an automobile in which illegal drugs were found after the defendant had been arrested for reckless operation. As Justice Scalia noted in Austin, the real object of a forfeiture is the property owner.
{ } Another key concept in forfeiture is the use of statutory authority. In other words, some type of authority must exist in order for the State to seize an individual's property. As we mentioned, some Ohio statutes do allow seizure or forfeiture of animals. Other statutes in Ohio specifically provide for forfeiture of property. However, the State did not resort to any statutory procedures. The point is that neither a court nor the State can simply decide on its own to confiscate an individual's property, without affording the individual due process of law.
{ } Accordingly, the fourth, fifth, and sixth assignments of error are sustained.
V.
{ } In the seventh assignment of error, Walker contends that the trial court erred by disposing of Walker's property contrary to the provisions set forth in R.C. 2329.01 et. seq. and R.C. 2933.41-43. In particular, Walker claims that the court should have disposed of the bears a
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