[This opinion has been published in Ohio Official Reports at
72 Ohio St.3d 132.]
THE STATE EX REL. MILLER ET AL., APPELLANTS, v. ANTHONY ET AL.,
APPELLEES.
[Cite as State ex rel. Miller v. Anthony, 1995-Ohio-39.]
Nuisances—Section 5, Article I of the Ohio Constitution did not preserve right to a
jury trial in nuisance abatement actions—Confiscation and sale of personal
property used in maintaining a nuisance and the imposition of a one-year
closing are preventive measures, not penalties imposed for past criminal
conduct—Evidence sufficient to establish that a nuisance exists.
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1. Section 5, Article I of the Ohio Constitution did not preserve the right to a jury
trial in nuisance abatement actions.
2. The confiscation and sale of personal property used in maintaining a nuisance
and the imposition of a one-year closing order pursuant to R.C. 3767.06 as
well as the imposition of the tax required by R.C. 3767.08 are preventive
measures, not penalties imposed for past criminal conduct. Inclusion of
these provisions within the nuisance abatement framework does not
transform nuisance abatement actions into legal actions to which the right
to a jury trial attaches.
3. When the state offers clear and convincing evidence that felony violations of
R.C. Chapter 2925 chronically occur on a parcel of property, such evidence
is sufficient to establish that a nuisance exists on such property subject to
abatement in accordance with R.C. 3719.10.
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(No. 93-2238—Submitted February 8, 1995—Decided May 3, 1995.)
APPEAL from the Court of Appeals for Franklin County, No. 93AP-492.
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SUPREME COURT OF OHIO
{¶ 1} In the summer of 1991, officers of the Columbus Police Department
Narcotics Bureau began investigating Phillip L. Anthony, Sr. in response to
complaints from neighbors that Anthony was selling drugs from his residence at
1536 East Long Street. Pursuant to that investigation, police executed a search
warrant at the house in July 1991 and found approximately seven hundred forty
grams of marijuana as well as drug paraphernalia. Anthony pled guilty and was
convicted of a felony drug trafficking offense as a result of the search. He was
sentenced to probation.
{¶ 2} Neighborhood complaints of suspected drug activity at Anthony's
residence continued in 1992. Specifically, neighbors living next door to Anthony
at 1540 East Long Street observed numerous people visiting Anthony's house
throughout the day and night. The visits usually lasted only ten or fifteen minutes.
One of the neighbors reported seeing the people who entered the house passing
bags to their companions when they returned to the cars on the street. On several
occasions, strangers mistakenly stopped at 1540 East Long Street looking for
Anthony, often late at night. The neighbors noticed the strangers going to Anthony's
house when they left. The neighbors also observed students from nearby East High
School loitering near the house.
{¶ 3} In September 1992, Columbus police officers began conducting
surveillance of 1536 East Long Street. The officers verified that an unusually large
number of people were frequenting the house and staying for short periods of time.
The officers recognized some of the visitors as people involved in drug activities
and noted that some of the vehicles were registered to people with prior criminal
histories. On November 6, 1992, officers executed another search warrant at the
house and found loose and packaged marijuana totaling one hundred ninety-nine
grams, several guns, ammunition, a digital scale, a triple-beam scale, over $1,700
in cash, and other drug paraphernalia. Anthony had four $100 bills on his person
and one officer found marijuana loosely strewn about the area where Anthony had
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January Term, 1995
been standing. The neighbors stated that the activity at Anthony's residence stopped
for a few days after the November search and then returned to its usual pace.
{¶ 4} On December 22, 1992, Franklin County Prosecuting Attorney
Michael Miller and Columbus City Attorney Ronald J. O'Brien brought a complaint
pursuant to R.C. Chapter 3767 to abate the nuisance alleged to exist at 1536 East
Long Street. The complaint alleged that Anthony committed violations of R.C.
Chapter 2925 while at the residence and that 1536 East Long Street constitutes a
public nuisance within the meaning of R.C. 3719.10. The state requested that the
trial court grant both preliminary and permanent injunctive relief and order the
nuisance permanently abated. On the same day, the trial court granted an ex parte
temporary restraining order pursuant to R.C. 3767.04. In accordance with R.C.
3767.04, upon service of the restraining order, police inventoried the personal
property and contents of the house used in conducting or maintaining the alleged
nuisance. The police returned an inventory form to the trial court containing only
the words "nothing to inventory."
{¶ 5} Following a hearing on December 30, the trial court found that the
state had shown that the premises constituted a nuisance and granted a preliminary
injunction. At the January 19, 1993 hearing to consider the granting of a permanent
injunction, Anthony objected to the proceedings, alleging, among other things, that
he had a right to a jury trial. In an opinion filed February 16, the trial court held that
Anthony was not entitled to a jury trial. The court declared 1536 East Long Street
a public nuisance and granted the permanent injunction. The court also ordered the
premises padlocked for one year and taxed Anthony $300 in accordance with R.C.
3767.06 and 3767.08, respectively. An order implementing the trial court's decision
was issued on March 15.
{¶ 6} Anthony appealed to the Franklin County Court of Appeals. In a split
decision, the appeals court reversed the trial court's judgment, holding that Anthony
was entitled to a jury trial and that the judgment was against the manifest weight of
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the evidence because the state failed to prove that a nuisance was occurring at 1536
East Long Street at the time the hearing was held or at least at the time the complaint
was filed.
{¶ 7} The cause is now before this court upon the allowance of a
discretionary appeal.
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Michael Miller, Franklin County Prosecuting Attorney, Carol Hamilton
O'Brien, Assistant Prosecuting Attorney; Ronald J. O'Brien, Columbus City
Attorney, and Antonio B. Paat, Jr., Assistant City Attorney, for appellants.
John L. Onesto, for appellee.
Betty D. Montgomery, Attorney General, Richard A. Cordray, State
Solicitor, Simon B. Karas and Jeffery W. Clark, Assistant Attorneys General, urging
reversal for amicus curiae, Ohio Attorney General.
__________________
COOK, J.
{¶ 8} This case presents two issues for review. We first determine that no
right to a jury trial attaches in a nuisance abatement action. Second, we conclude
that clear and convincing evidence of chronic felony violations of R.C. Chapter
2925 on a parcel of property is sufficient to prove that R.C. 3719.10 applies to such
premises. There need not be evidence that the violations are occurring either at the
time a complaint is filed or at the time a hearing takes place in order for a nuisance
subject to abatement to exist.
I
{¶ 9} With its first proposition of law, the state argues that the appeals court
erred in holding that the right to a jury trial attached in this nuisance abatement
action. In making its determination, the appeals court majority focused on Sections
5 and 12 of Article I of the Ohio Constitution. We, therefore, consider each of these
constitutional mandates in turn.
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January Term, 1995
A
Section 5, Article I of the Ohio Constitution
{¶ 10} Section 5, Article I of the Ohio Constitution states that "[t]he right
of trial by jury shall be inviolate …." This court, however, has clarified that this
section did not preserve the right to a jury trial in a particular cause of action unless
the action is one that was recognized as a jury issue at common law. Digital &
Analog Design Corp. v. N. Supply Co. (1992), 63 Ohio St.3d 657, 661,
590 N.E.2d
737, 741. We, therefore, address the nature of nuisance abatement actions in the
context of the common law.
{¶ 11} As early as 1893, the United States Supreme Court defined an
abatement action as "not a common law action, but a summary proceeding more in
the nature of a suit in equity …." Cameron v. United States (1893), 148 U.S. 301,
304,
37 L.Ed. 459, 460. The court went on to explain that an abatement order was
"unknown to an action at common law as administered in this country."
Id.
Similarly, we find that the nuisance abatement provisions of R.C. Chapter 3767 are
equitable in nature and not created by common law.
{¶ 12} The state has an inherent and necessary police power which extends
to the protection, health, and comfort of all persons and property within the state.
Cincinnati v. Steinkamp (1896), 54 Ohio St. 284, 290,
43 N.E. 490, 491. All
property owners are obligated to use their property in a manner that will not injure
the community at large. Mugler v. Kansas (1887),
123 U.S. 623, 665,
31 L.Ed.
205, 211. The legislature may exercise its police power by authorizing the proper
authorities to grant injunctions in order to prevent certain persons from allowing
their property to pose a continuing detriment to public safety. Steinkamp, 54 Ohio
St. at 292, 43 N.E. at 491.
{¶ 13} The language of R.C. 3767.03 supports the conclusion that a
nuisance abatement action pursuant to that statute is an equitable action arising
from the state's police power. R.C. 3767.03 reads as follows: "Whenever a nuisance
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exists, … the prosecuting attorney of the county in which the nuisance exists …
may bring an action in equity … to abate the nuisance and to perpetually enjoin
the person maintaining the nuisance from further maintaining it." (Emphasis
added.)
{¶ 14} Nuisance abatement actions seek injunctive relief and, as such, are
governed by the same equitable principles that apply to injunctive actions generally.
See, generally, Parker v. Winnipiseogee Lake Cotton & Woolen Co. (1863), 67 U.S.
545, 551,
17 L.Ed. 333, 337. The United States Supreme Court has held that "a
[jury] trial is not required in suits in equity brought to abate a public nuisance."
Mugler,
123 U.S. at 673,
31 L.Ed. at 214; see, also, Converse v. Hawkins (1877),
31 Ohio St. 209, paragraph two of the syllabus; Steinkamp,
54 Ohio St. 284,
43
N.E. 490, syllabus. Moreover, this court has explained that "[i]f the civil authorities
were obliged to wait the slow process of a jury trial in [nuisance abatement actions]
the evil sought to be remedied would seldom be avoided." Steinkamp, 54 Ohio St.
at 290, 43 N.E. at 491.
{¶ 15} We, therefore, hold that Section 5, Article I of the Ohio Constitution
did not preserve the right to a jury trial in nuisance abatement actions.
B
Section 12, Article I of the Ohio Constitution
{¶ 16} In finding that Anthony's right to a jury trial was violated in this
action, the appeals court also considered Section 12, Article I of the Ohio
Constitution which provides, "no conviction shall work … forfeiture of estate."
With regard to the foregoing provision, the appeals court majority focused on the
interplay of R.C. 3767.11(A), which states that a finding of guilty "shall be
conclusive against the defendant as to the existence of the nuisance in the civil
action," and R.C. 3767.06(A), which requires the confiscation and sale of all
personal property and contents of premises that were used in conducting the
nuisance. Apparently viewing these provisions as allowing the state not only to
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January Term, 1995
enjoin the nuisance, but also to impose financial penalties or forfeitures upon
persons for past criminal conduct, the appeals court determined that nuisance
abatement actions pursuant to R.C. 3719.10 and Chapter 3767 can no longer be
considered equitable actions. We disagree.
{¶ 17} First, we address R.C. 3767.06, which provides: "If the existence of
a nuisance is admitted or established …, an order of abatement shall be included
in the judgment entry …. The order shall direct the removal from the place …
of all personal property and contents used in conducting or maintaining the
nuisance … and shall direct that [such property] be sold[.]" We note that the police
who conducted the inventory of 1536 East Long Street at the time that the
temporary restraining order was issued did not find any personal property or
contents of the premises used in conducting the nuisance and, therefore, Anthony
could not have suffered any penalty pursuant to R.C. 3767.06 in this case. However,
even assuming that police had inventoried personal property at Anthony's residence
that would have been subject to confiscation and sale under R.C. 3767.06, we do
not find such confiscation and sale would have amounted to a penalty such that
Anthony's right to a jury trial would have attached.
{¶ 18} In Solly v. Toledo (1966), 7 Ohio St.2d 16,
36 O.O.2d 9,
218 N.E.2d
463, paragraph one of the syllabus, this court upheld legislation "authorizing the
summary abatement of public nuisances and the destruction of property used in
maintaining such nuisances when reasonably necessary to effectuate their
abatement." This court, however, cautioned that when an official destroys private
property without either seeking a judicial determination that a public nuisance
exists or at least providing the owner of the premises an administrative hearing, he
bears the burden of proving that the destruction was necessary to abate the nuisance
should the owner of the property sue for damages.
Id. at paragraphs three and four
of the syllabus. While the Solly holding suggests the importance of obtaining
judicial determinations in nuisance abatement actions, it in no way suggests the
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need to afford persons a jury trial. Furthermore, R.C. 3767.06 goes a step further
than the ordinance involved in Solly in that it expressly requires that the existence
of a nuisance be admitted or established in a judicial proceeding prior to the
confiscation and sale of personal property. Thus, we find the confiscation and sale
of property under R.C. 3767.06 without a jury trial to be constitutional. Moreover,
we decline to label the confiscation and sale of personal property under this statute
a "forfeiture." It is instead a remedy designed to prevent the continuation of
unlawful acts rather than a punishment for unlawful activity. See Schneider v.
Commonwealth (1929), 232 Ky. 199, 202,
22 S.W.2d 587,588.
{¶ 19} Additionally, Anthony argues that R.C. 3767.06 penalizes him by
requiring that, after a nuisance is established, the court must close the premises to
any purpose for one year. He reasons that while the closing order denies him the
use of his home for one year, the order does not prevent him from carrying on drug
activities at a different home. He, therefore, concludes that the closing requirement
serves to punish him, not to abate the nuisance. We also find this argument without
merit.
{¶ 20} First, Anthony underestimates the scope of the permanent injunction
issued pursuant to R.C. 3767.05. The statute expressly states that the permanent
injunction not only perpetually enjoins the defendant and any other persons from
further maintaining a nuisance at the place that is the subject of the complaint, it
also perpetually enjoins "the defendant from maintaining the nuisance elsewhere."
R.C. 3767.05(D). In fact, the trial court's March 15 order expressly stated that
Anthony was "permanently enjoined from maintaining the nuisance of felony drug
abuse at [1536 East Long Street] or any other premises." (Emphasis added.)
Anthony, therefore, is incorrect in his assertion that he could move down the street
and resume drug activities. Furthermore, we find 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
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January Term, 1995
through non-use of the property for one year. Thus, as the closing order aids in
implementing the abatement order, we find it to be preventive, not punitive, in
nature.
{¶ 21} Finally, we reject Anthony's argument that R.C. 3767.08 causes his
right to a jury trial to attach in the present action. R.C. 3767.08 requires the
imposition of a tax upon the nuisance and against the person maintaining the
nuisance. The tax is imposed only when a permanent injunction issues and is
limited to $300. The statute also requires that the court apply the tax "in payment
of any deficiency in the costs of the action and abatement on behalf of the state to
the extent of such deficiency after the application thereto of the proceeds of the sale
of personal property." Id. Given the restricted application of the "tax," we hold that
it should not be characterized as a penalty, but as part of the preventive measures
taken by the court in abating the nuisance. The tax, therefore, is also equitable in
nature.
{¶ 22} For all of the foregoing reasons, we hold that the confiscation and
sale of personal property used in maintaining a nuisance and the imposition of a
one-year closing order pursuant to R.C. 3767.06 as well as the imposition of the tax
required by R.C. 3767.08 are preventive measures, not penalties imposed for past
criminal conduct. Inclusion of these provisions within the nuisance abatement
framework does not transform nuisance abatement actions into legal actions to
which the right to a jury trial attaches.
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SUPREME COURT OF OHIO
II
{¶ 23} In its second proposition of law, the state challenges the appeals
court's interpretation of R.C. 3719.10. The statute states: "Premises or real estate
… on which a felony violation of Chapter 2925. … of the Revised Code occurs
constitute a nuisance subject to abatement pursuant to Chapter 3767. of the Revised
Code." (Emphasis added.) The appeals court majority found that the use of the
present-tense verb "occurs" requires the state to demonstrate that a felony violation
of R.C. Chapter 2925 "was occurring" at 1536 East Long Street at either the time
of the filing of the complaint or the time of the hearing in order for a nuisance
subject to abatement to exist. We find this interpretation unnecessarily restrictive.
{¶ 24} Courts are required to construe statutory wording in accordance with
the rules of grammar and common usage. R.C.1.42. As Judge Bowman notes in
her separate opinion below, the present tense can be used to describe habitual
action. Harbrace College Handbook (12 Ed.Rev. 1994) 88. We find that the
legislature intended to use the present tense in such a manner in this case. The error
of the more restricted view adopted by the appeals court majority is perhaps best
illustrated by the majority's inability to pinpoint whether the statute requires the
state to show that the nuisance was occurring at the time of the hearing or at the
time of the filing of the complaint.
{¶ 25} Although this court has not previously addressed this issue, existing
case law has not applied R.C. 3719.10 so narrowly. In State ex rel. Freeman v.
Pierce (1991), 61 Ohio App.3d 663, 671,
573 N.E.2d 747, 752, a case factually
similar to this one, the Montgomery County Court of Appeals held that "in 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." The court further
explained that a relator could use reputation evidence and evidence of convictions
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January Term, 1995
arising from the premises to prove that a nuisance exists. Id.,61 Ohio App.3d at
671,
573 N.E.2d at 752; see, also, R.C. 3767.05(A). Such evidence would not be
relevant if it were necessary to prove that a violation was occurring at the time the
complaint was filed or the hearing took place.
{¶ 26} We also do not agree with the appeals court's reliance on this court's
holding in Miller v. State (1854), 3 Ohio St. 475, a case nearly one hundred fifty
years old involving liquor nuisance abatement. Most important, R.C. 4301.73, the
current successor to the statute construed in Miller, now clarifies that it is not
necessary for a court to find that property was being unlawfully used at the time of
the nuisance hearing in order for an abatement order to issue. Moreover, even
though Miller stated that an abatement order cannot issue unless the nuisance
continues to exist at the time the abatement order is made, the opinion goes on to
explain that if the court is satisfied that a place is kept in order to conduct a nuisance,
the abatement order may issue. Miller, 3 Ohio St. at 488.
{¶ 27} In this case, police searched and found marijuana and other drug
paraphernalia at 1536 East Long Street twice in two years. Police received frequent
complaints from neighbors concerning the property and observed suspicious
activity indicative of ongoing felony drug violations at the property. Neighbors
testified that the suspicious activity stopped only briefly after the November 6, 1992
raid. Given this evidence, we find that the state offered clear and convincing
evidence sufficient to show that the house was kept in order to conduct a nuisance
and that such nuisance was subject to abatement under R.C. 3719.10.
{¶ 28} Finally, we reject Anthony's assertion that the Ohio legislature is
improperly attempting to punish criminal activity with civil laws. This court has
previously held that "[w]here an injunction is necessary for the protection of public
rights, property, or welfare, the criminality of the acts complained of does not bar
such remedy …." State ex rel. Chalfin v. Glick (1961), 172 Ohio St. 249,
15
O.O.2d 410,
175 N.E.2d 68, paragraph five of the syllabus. Moreover, a criminal
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conviction would not always abate the nuisance, especially if the person convicted
does not own the premises.
{¶ 29} We hold that when the state offers clear and convincing evidence
that felony violations of R.C. Chapter 2925 chronically occur on a parcel of
property, such evidence is sufficient to establish that a nuisance exists on such
property subject to abatement in accordance with R.C. 3719.10. To hold otherwise
would be to undermine the very purpose for which that statute was created.
{¶ 30} For the foregoing reasons, we reverse the judgment of the court of
appeals and reinstate the trial court's order abating the nuisance.
Judgment reversed.
MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ.,
concur.
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