Aronson v. City of Akron
| Decision Date | 29 July 1997 |
| Docket Number | No. 95-3184,95-3184 |
| Citation | 116 F.3d 804 |
| Parties | Stanley P. ARONSON, et al., Plaintiffs-Appellants, v. CITY OF AKRON, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Kenneth L. Gibson (argued and briefed), Weick & Weick, Cuyahoga Falls, OH, for Plaintiffs-Appellants.
Patricia A. Rubright, Director of Law, Akron, OH, for Defendants-Appellees, City of Akron, Darwin McGlumphy, Michael Woody, Detective McKeel, Officer Lugenbeal, Stan Smith, Charles Quinn, Noelle Tsevdos, and Hugh Sansbury.
Tracey Anne Wertman (argued and briefed), Summit County Prosecutor's Office, Donna J. Carr, Akron, OH, for Defendants-Appellees, Summit County, Ohio, and Lynn C. Slaby.
Andrew S. Bergman (argued and briefed), Office of the Attorney General of Ohio, Columbus, OH, for Amicus Curiae, State of Ohio.
Before: NELSON, RYAN, and SILER, Circuit Judges.
Ohio's "corrupt activity" law--sometimes called "Ohio RICO," after the federal statute on which it is patterned 1--provides that a person convicted of violating Ohio Rev.Code § 2923.32 () shall criminally forfeit his interest, if any, in property used in the course of or derived from the illegal conduct. See § 2923.32(B)(3). The law further provides that during the pendency of a criminal proceeding under Ohio RICO, the state, by filing an appropriate notice, may acquire a lien on property that is subject to forfeiture. See Ohio Rev.Code § 2923.36 (the "Corrupt Activity Lien Statute").
The case at bar is a civil rights action in which two central questions are presented: (1) whether the Corrupt Activity Lien Statute is unconstitutional on its face, and (2) whether the plaintiffs (one of whom was indicted for Ohio RICO violations, among other charges, but was not convicted on the RICO counts) suffered a violation of their constitutional rights by reason of the manner in which the statute was applied to them.
The district court entered summary judgment orders answering both questions in the negative. We agree that the statute is not unconstitutional on its face, and we shall affirm the order in which the district court so held. It seems to us that the record presents certain genuine issues of material fact with respect to the constitutionality of the statute's application in this instance, however, and we shall reverse, in part, the order in which the district court granted summary judgment on the plaintiffs' "as applied" claim.
The plaintiffs, Stanley P. Aronson and his wife, Kimberly L. Aronson, were apparently involved in conducting extensive bingo operations in Summit County, Ohio. In April of 1993 a Summit County grand jury handed up an indictment in which the Aronsons and others were charged with various felonies and misdemeanors connected with the bingo games. The felony counts against Mr. Aronson included one in which he was charged with having violated Ohio Rev.Code § 2921.32(A)(1) by engaging in a pattern of corrupt activity. Another count charged him with conspiracy to engage in a pattern of corrupt activity. The indictment contained a "forfeiture specification" alleging that certain property, including the Aronsons' residence at 2254 Anthony Drive, Bath Township, Ohio, either was used to commit the Ohio RICO offense or constituted proceeds of the offense.
Soon after the Aronsons were indicted, a corrupt activity lien notice signed by defendant Lynn C. Slaby, Prosecuting Attorney of Summit County, was filed with the county recorder. The notice made reference to the Ohio RICO case against Mr. Aronson; gave a description of the property at 2254 Anthony Drive; and indicated that title was in the name of Mr. and Mrs. Aronson, "[t]he Defendant [Mr. Aronson] having a one-half (1/2) interest in this property."
The assistant prosecutor who made the filing, Philip P. Bogdanoff, subsequently attested that he mailed a copy of the recorded lien notice to Mr. Aronson by regular mail. He ought to have used certified mail, return receipt requested, as required by Ohio Rev.Code § 2923.36(D). Realizing his mistake, Mr. Bogdanoff filed a new lien notice the following month and attempted to furnish Mr. Aronson a copy by certified mail, return receipt requested, using the Anthony Drive address. (A notice of removal of the first lien was filed at about the same time.)
The Postal Service could not obtain a signature for receipt of the certified mail piece, and it was returned to the prosecutor as "unclaimed" after the Postal Service had left two notices at the residence. Mr. Bogdanoff then remailed a copy of the lien notice, again using certified mail. This too was returned as unclaimed after two unsuccessful attempts to obtain a signature on the return receipt. Still using certified mail, Mr. Bogdanoff finally furnished a copy of the lien notice to counsel of record for Mr. Aronson in the criminal proceeding.
In February of 1994 Mr. and Mrs. Aronson pleaded guilty to the misdemeanor counts of the indictment. The prosecutor dismissed all of the felony counts at this time, including the counts charging Mr. Aronson with Ohio RICO violations. The prosecutor is said to have stated at a news conference that because of a change in the testimony of a witness and discovery of accounting errors made by the investigators, his office felt that the felony charges could not be proved. Mr. Bogdanoff filed a notice of removal of the lien some three weeks after the dismissal of the RICO charges.
Meanwhile, shortly before the termination of the criminal proceedings, the Aronsons had brought a federal civil rights action against the city of Akron and various state and local law enforcement officials. The complaint alleged that the Aronsons had been subjected to false arrest, defamation, and illegal searches and seizures, among other things. Prosecuting Attorney Lynn Slaby, Summit County, the State of Ohio and others were joined as new parties defendant with the filing of an amended complaint in April of 1994.
The amended complaint alleged, among other things, that the corrupt activity lien filings had been made without probable cause, without prior notice, and without an opportunity to contest the lien in advance; that the filings constituted unreasonable seizures violative of the plaintiffs' rights under the Fourth and Fourteenth Amendments of the United States Constitution; that the plaintiffs had been deprived of property without due process of law in violation of the Fifth and Fourteenth Amendments; and that Ohio Rev.Code § 2923.36 should be declared unconstitutional on its face. The amended complaint also set forth state law claims for defamation, abuse of process, and intentional infliction of emotional distress.
The amended complaint alleged that the plaintiffs had suffered damages as a result of the lien filings, but the pleading did not specify the nature of the damages. In an affidavit filed some months later, however, Mr. Aronson attested that the forfeiture specification caused him to be in violation of the terms of a mortgage on the Anthony Drive property; 2 that because of the forfeiture specification, he was delayed in refinancing his home; and that although he was able to refinance at a 7% interest rate after the indictment was dismissed and the lien released, interest rates had been as low as 6 1/8% at one point during the pendency of the indictment. Unlike the parties in several of the cases on which the plaintiffs rely (see, e.g., United States v. Monsanto, 924 F.2d 1186 (2d Cir.) (en banc ), cert. denied, 502 U.S. 943, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991), and United States v. Unit No. 7 and Unit No. 8, 853 F.2d 1445 (8th Cir.1988)), Mr. Aronson has never contended that the lien prevented him from obtaining representation by a lawyer of his own choosing.
Mr. Aronson's affidavit also attested that the Anthony Drive property had been purchased under a land contract in 1982 and had been conveyed to Mr. Aronson by a warranty deed recorded in 1987, well before the time frame (January of 1990 through February of 1992) specified in the indictment for the alleged pattern of corrupt activity. The affidavit further attested that the property did not in any way constitute the proceeds of a pattern of corrupt activity and had not been used to commit a pattern of corrupt activity.
In due course the Aronsons moved for partial summary judgment, asking the district court to strike down specified portions of Ohio Rev.Code § 2923.36 as unconstitutional on their face. Concluding that the statute is not unconstitutional on its face, the court denied the motion.
Defendants Lynn Slaby and Summit County then moved for partial summary judgment with respect to the "as applied" challenge to the statute. The district court granted the motion, ruling in favor of the remaining defendants 3 on all of the federal claims and dismissing the pendent state law claims without prejudice. The plaintiffs have perfected a timely appeal.
The Aronsons contend that Ohio's Corrupt Activity Lien Statute is unconstitutional on its face because (1) it authorizes the seizure of property interests without probable cause, thereby violating the Fourth Amendment prohibition (made applicable to Ohio by the Fourteenth Amendment) against unreasonable seizures; (2) it allows liens to be filed without prior notice and an opportunity to be heard in court, thereby violating the due process provisions of the Fifth and Fourteenth Amendments; and (3) it violates the constitutional rights of innocent third parties. To evaluate these contentions properly, it will be necessary to describe some of the pertinent features of the statutory scheme in greater detail than we have done so far.
Once a defendant has been convicted of an Ohio RICO vio...
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