Thomas v. City of Cleveland
Decision Date | 10 February 2000 |
Docket Number | No. 75005, No. 75006. |
Citation | 140 Ohio App.3d 136,746 NE 2d 1130 |
Parties | THOMAS et al., Appellants and Cross-Appellees, v. CITY OF CLEVELAND, Appellee and Cross-Appellant. |
Court | Ohio Court of Appeals |
Peter M. Iskin, Harold L. Williams and Ann McGowan Porath, for appellants and cross-appellees.
Cornell P. Carter, Director of Law; William D. Mason, Cuyahoga County Prosecuting Attorney, Jeffrey I. Sherwin and Cathie T. Chancellor, Assistant Prosecuting Attorneys, for appellee and cross-appellant.
Ohio law permits the forfeiture of contraband used in connection with certain criminal offenses, regardless whether the owner of the contraband participated in the criminal offense. The issue in this appeal and cross-appeal is whether the city of Cleveland's seizure procedures violate due process by failing to afford innocent owners of property sufficient notice of seizure and speedy disposition of their property.
The relevant facts have been stipulated, though we stress the stipulations referred to are those entered into only between the city and plaintiffs, not those separately entered into by the Cuyahoga County Prosecuting Attorney, who is not a party to this appeal. Both plaintiffs in this consolidated case, Annie Thomas and Christine Taylor, own automobiles that were used by other persons in the commission of drug offenses. Neither plaintiff participated in the commission of the underlying criminal offense.
The stipulated facts show that when the city takes possession of a vehicle it believes may be subject to forfeiture, it submits a request to the Cuyahoga County Prosecuting Attorney to begin forfeiture proceedings. The prosecutor must then determine whether the vehicle is subject to forfeiture. If the prosecutor determines that a forfeiture petition should be filed, the prosecutor generally files the petition at the same time the indictment is filed in the underlying criminal case.
The parties agree the city filed timely requests for forfeiture in both cases with the prosecuting attorney, but the prosecuting attorney did not file petitions requesting forfeiture in either underlying criminal case.
Plaintiff Thomas's son used her car without her permission and was stopped for a traffic offense on February 6, 1995. The police found drugs in his possession and arrested him on felony drug abuse charges. The police impounded the car as suspected contraband pursuant to R.C. 2933.43(A)(1) because of its relationship to the underlying felony drug charges. Thomas called the police within two days of her son's arrest to inquire about her car. At that time, the police orally informed her they took possession of the car and would keep the car subject to forfeiture. Thomas made a second unsuccessful attempt to retrieve her car on April 6, 1995.
Sometime in February 1995, the police timely requested the prosecuting attorney to file a petition for forfeiture. They did so with the expectation that, unless informed otherwise, the petition for forfeiture would be filed. On June 13, 1995, Thomas's son pleaded guilty to a drug abuse charge. The police learned "sometime after June 29, 1995" that the prosecuting attorney did not file a petition for forfeiture in that case. On September 7, 1995, the police telephoned Thomas and told her she could retrieve her car.
Plaintiff Taylor permitted a friend to use her car on April 5, 1995, and the police stopped the friend for a traffic violation. The police found drugs in his possession and arrested him on felony drug abuse charges. The police impounded the car as suspected contraband pursuant to R.C. 2933.43(A)(1) because of its relationship to the underlying felony drug charges. Taylor called the police on the day of her friend's arrest to inquire about her car. The police orally informed Taylor they took possession of the car and would keep the car subject to forfeiture. In April 1995, the police timely requested that the prosecuting attorney file a forfeiture petition, but the prosecuting attorney did not file the petition. Taylor's friend pleaded guilty to a drug abuse charge on January 25, 1996. The stipulations do not indicate when the city learned that the prosecuting attorney did not file a petition for forfeiture, but the police released Taylor's car on May 20, 1996. Taylor made three inquires about her car during the period from July 1995 to September 1995.
Plaintiffs filed this declaratory judgment action asking the court to declare the forfeiture statute unconstitutional on grounds that it failed to afford them timely and meaningful post-seizure notice and an opportunity to be heard on the seizure. The complaint also sought compensatory damages. The parties entered into stipulations of fact and filed cross-motions for summary judgment.
In a written opinion, the court found the delay plaintiffs suffered in retrieving their cars was caused by the need to adjudicate the underlying criminal case, a prerequisite to satisfying the forfeiture provisions of R.C. 2933.43(C). Because a forfeiture hearing must be held no later than forty-five days after the conclusion of the criminal case, and a potential innocent owner is entitled to twenty-eight days notice of the hearing, the court found R.C. 2933.43(C) "can be interpreted as requiring no more than seventeen (17) days notice after the conclusion of the underlying criminal case." Applying those time periods, the court found that neither plaintiff received a hearing within forty-five days after the underlying criminal cases were completed, so they were entitled to compensation. The parties eventually stipulated that each plaintiff would receive $400 in damages.
The city's cross-assignment of error argues the court should not have reached the merits of the case because the issues were not ripe for adjudication. It maintains the forfeiture mechanism did not come into operation because the prosecuting attorney did not file a petition for forfeiture. That being the case, the city claims plaintiffs could not have attacked the validity of the forfeiture mechanism under the declaratory judgment statute because a concrete dispute about the forfeiture statute did not exist. The city argues plaintiffs should have instead availed themselves of the right to replevin, a course of action plaintiffs admit they did not pursue.
Under R.C. 2933.43(C), the prosecuting attorney who has responsibility for prosecuting the underlying criminal case must file the petition for forfeiture. Because the persons driving plaintiffs' cars were charged with felony drug offenses, the responsibility for prosecuting these cases fell to the prosecuting attorney of Cuyahoga County, at that time, Stephanie Tubbs Jones. The prosecuting attorney therefore had the responsibility to file the forfeiture petitions. When she failed to do so, there was no possibility that forfeiture could be ordered at all. See State v. Cola (1992), 76 Ohio App.3d 840, 841, 603 N.E.2d 405, 405 ( ); State v. Roberson (Jan. 19, 1995), Cuyahoga App. No. 64956, unreported, 1995 WL 23347.
Without a properly filed petition, the forfeiture mechanism did not begin and there could not have been a "real and justiciable controversy" between the parties. A "justiciable controversy" is a "real" or "actual" controversy. Voinovich v. Ferguson (1992), 63 Ohio St.3d 198, 217, 586 N.E.2d 1020, 1033. Otherwise stated, a real, justiciable controversy is a "genuine dispute between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Wagner v. Cleveland (1988), 62 Ohio App.3d 8, 13, 574 N.E.2d 533, 537. In Bilyeu v. Motorists Mut. Ins. Co. (1973), 36 Ohio St.2d 35, 37, 65 O.O.2d 179, 180, 303 N.E.2d 871, 873, the Supreme Court of Ohio quoted the United States Supreme Court, in Aetna Life Ins. Co. v. Haworth (1937), 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617, 621-622, as follows:
" * * * [I]n order to grant declaratory relief, the court must be convinced of the existence of `* * * a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'"
A proceeding does not lie to obtain a judgment which is merely advisory or which answers a moot or abstract question. Moskowitz v. Federman (1943), 72 Ohio App. 149, 164, 27 O.O. 53, 59-60, 51 N.E.2d 48, 55-56. Similarly, a declaratory judgment action will not lie to obtain a judgment which is advisory in nature or which is based on an abstract question or a hypothetical statement of facts. Bilyeu v. Motorists Mut. Ins. Co., 36 Ohio St.2d at 37, 65 O.O.2d at 180, 303 N.E.2d at 872-873; Cincinnati Metro. Hous. Auth. v. Cincinnati Dist. Council No. 51 (1969), 22 Ohio App.2d 39, 51 O.O.2d 45, 257 N.E.2d 410.
The court conceded that there was no longer a controversy or justiciable issue between the parties, but found the issue "is likely to recur and declaratory judgment could terminate the uncertainty or controversy." (Internal quotation omitted.) In Weinstein v. Bradford (1975), 423 U.S. 147, 149, 96 S.Ct. 347, 348-349, 46 L.Ed.2d 350, 352-353, the United States Supreme Court recognized an exception to the mootness doctrine in non-class action cases where "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." See, also, Murphy v. Hunt (1982), 455 U.S. 478, 482, 102 S.Ct. 1181, 1183-1184, 71 L.Ed.2d 353, 357; James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App.3d 788, 792, 600 N.E.2d 736, 738-739.
Under the circumstances, we believe petitioners have made a sufficient showing that they will reasonably suffer another potential forfeiture in the...
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