State ex rel. Miller v. Anthony

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State: Ohio

Court: Supreme Court

Docket No: 1993-2238

Case Date: 05/03/1995

Plaintiff: State ex rel. Miller

Defendant: Anthony

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The State ex rel. Miller et al., Appellants, v. Anthony et al.,
Appellees.
[Cite as State ex rel. Miller v. Anthony (1995), Ohio
St.3d .]

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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 anuisance 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.

---
(No. 93-2238 -- Submitted February 8, 1995 --Decided May
3, 1995.)
Appeal from the Court of Appeals for Franklin County, No.
93AP-492.

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.

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.

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 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.

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."

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.

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
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.

The cause is now before this court upon the allowance of a
discretionary appeal.

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.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

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.

A

Section 5, Article I of the Ohio Constitution

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.

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.

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.

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 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.)

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.

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

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 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.

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.

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 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.

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.

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 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.

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.

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.

II

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.

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.

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 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.

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.

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.

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 conviction would not always abate the nuisance,
especially if the person convicted does not own the premises.

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.

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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