In Re 730 Chickens

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an appeal from a judgment entered by the Vinton County Court which granted an application for forfeiture of seven hundred thirty chickens seized by the state of Ohio, appellee, pursuant to a search warrant and ordered the humane destruction of the chickens.

Appellants, Phillip Fleming and the Ohio Gamefowl Breeders Association ("OGBA"), who were never made parties to the forfeiture proceedings, assign the following errors:

"ASSIGNMENT OF ERROR I:

"The order of forfeiture issued by the Vinton County Court is contrary to law because the mandates of revised code Section2933.41 pertaining to notice and service were not complied with."

"ASSIGNMENT OF ERROR II:

"The judgment of forfeiture should be reversed as it pertains to Phillip Fleming and members of Ohio Gamefowl Breeders Association because it amounts to a second criminal offense which the state failed to seek prior to sentencing."

On May 11, 1991, approximately seven hundred thirty chickens were seized pursuant to a search warrant as evidence of cockfighting, in violation of R.C. 959.15, and gambling, in violation of R.C. 2915.02. On May 13, 1991, a hearing was held in the Vinton County Court, and the trial court judge admonished the people in the courtroom as follows:

"What I assume that of those here today as spectators may have some interest in this, I think it would [sic] appropriate to make a generalised [sic] announcement to those of you in the court room. Here and now will be the time to set forth the claim with any property interest that you may have.

"* * *

"You should be aware that there is a possibility of additional criminal charges that may be filed out of this. If you wish to consult with your attorney about that, probably you should do so fortwith [sic]. This is a civil proceeding, not a criminal proceeding today, and it is a question what to do with the property that had been seized under the Search Warrant. However, the allegation which the state makes that the property that is sought to be forfeited or be destroyed is contra-band [sic]. If you claim an interest in contra-band [sic] and if you fit within the meaning [sic] of the statute, in other words putting a claim in the chickens, while in the process of a chicken fight, if you make that claim, you may [sic] submitting yourself to possible and additional criminal charges, as well. With that I think we will recess for a few moments, and anyone that who [sic] wants to assert a property interest in the chickens and feels that they are not subject to criminal liability may do so, given a few minutes to get the paper work put down, we will proceed after that."

After a brief recess, appellants' counsel entered an appearance and stated the following:

"Thank you, Your Honor for affording me the opportunity to speak on this question. As the Court is aware, I have been retained to represent one individual who was charged with a felony offense out of the weekend events, and that is Mr. Ray Johnson [sic], the owner of the property in question. In addition to that, I have been retained to represent the Ohio Gamefowl Breeders Association. Many of the individual constituent members are present here in the court room. I am not individually representing any claim of property owners, but in the absence of an objection, I would like to make a statement on some of these affected parties [sic] behalf."

Appellants' counsel then asserted that the notice of the forfeiture proceeding was improper and that some owners of the chickens did not have any knowledge that they were going to be used in an illegal activity. The trial court agreed with appellants' counsel that it was not illegal in itself to own one of the subject chickens, and again emphasized that it was "fair to warn people * * * that a chicken can be owned legally or illegally and depending on the circumstances of that particular individual — if you own it illegally and assert some claim for it * * * then you are letting yourself open for additional criminal charges."

Subsequently, appellee's counsel represented to the trial court that officers present at the cockfighting event held on May 11, 1991 notified everybody present that the chickens would be the subject of a forfeiture application and that anyone who had an interest in the chickens should state his claim to the officers. Appellee's counsel further stated as follows:

"Other than that, not very many people came forward and this left us then with a tremendous number of apparently unclaimed or ownerless birds, which is possible in a situation like this — when folks elect not to step forward and acknowledge the possible ownership of what could be construed criminal tools or evidence of a criminal activity. How someever [sic] none of that would act to deny an opportunity to now come forward once again as I stated before, it would be the states [sic] reception [sic] that now is the time and I am here ready and I was before I attempted to address these fellows before we called the judge back in and you said no, you got a statement."

The trial court then asked whether any individual desired to set forth a claim in the chickens, and appellants' counsel responded as follows:

"Does anyone here want to come forth and claim the chickens, under the circumstances that were described earlier and recognize their interest, if you do I would recommend that you come forward and do that now? Your Honor, I am advised by the trustees and officers of the Ohio Gamefowl Breeders Association [sic] that the individual owners of these chickens are all members of this group and they are asking me as the association attorney to make a claim on all of the chickens, on behalf of the association. I think with adadmisision [sic] that were given here today and I commend the prosecution of [sic] doing this. It has scared some of these people off from lawfully claiming what might well be legal property, and they have asked the association to make the plea in general for the chickens and the last thing that they want to see is the chickens destroyed. That is just as specific as I can be."

The trial court noted that it appeared that OGBA, a non-profit corporation, was asserting "some claim of ownership" and that an affidavit regarding the forfeiture should therefore be served on OGBA. The trial court then continued the forfeiture proceeding.

On May 14, 1991, in the related criminal proceeding, appellants' counsel entered a plea of no contest to charges of cockfighting in violation of R.C. 959.15 on behalf of sixty-nine individuals who are unspecified in the record before this court. The trial court orally sentenced these individuals by fining them $25 plus court costs. No journal entry of these sentences is contained in the record.

On May 15, 1991, Vinton County Sheriff Delno L. McClure filed a "VERIFIED APPLICATION FOR THE DISPOSITION OF FORFEITED/UNCLAIMED PROPERTY" in which he stated that: (1) the seven hundred thirty chickens were seized pursuant to a search warrant as evidence of cockfighting and gambling; (2) during the execution of the search warrant, everybody present was orally advised and issued a written notice to any individuals requesting further notice of a May 13, 1991 hearing regarding the disposition of the seized chickens; and (3) the chickens' violent propensity presented a severe security problem and continued care and preservation of the chickens was both difficult and expensive. Sheriff McClure's application requested that the chickens be declared unclaimed or forfeited property pursuant to R.C. 2933.41(D) and that they be "disposed of in a humane manner" pursuant to R.C. 2933.41(D)(8).

On May 15, 1991, the forfeiture proceeding continued and Ohio Department of Agriculture enforcement supervisor Steve Mowery testified that the confiscated chickens were of a violent nature and that they were used in a criminal activity, i.e., cockfighting, when seized. Mowery testified that if the court directed that the chickens be destroyed, his agency could supervise and insure a humane disposition. When appellants' counsel began cross-examining Mowery, the following exchange occurred:

"MR. GOSLING:

"I guess for purpose of record — I guess I am not sure of Mr. Lavelle's standing but I will probably object unless there has been some determination made of that.

"JUDGE BRAME:

"Q. Are you appearing on behalf of any particular individual or any organization Mr. Lavelle?

"ATTORNEY LAVELLE:

"A. Yes your honor. At this particular time I am appearing on behalf of the Ohio Gamefowl Breeders Association.

"JUDGE BRAME:

"Q. Is that organization making a claim to ownership or possession of these birds?

"ATTORNEY LAVELLE:

"A. Not at this time, no."

The trial court noted that even though OGBA was not entering a claim of ownership of the chickens, it would allow OGBA to proceed on an amicus curiae basis.

On May 16, 1991, the court below entered a judgment declaring that: (1) the chickens were unclaimed and duly forfeited pursuant to R.C. 2933.41; (2) alternatively, they constituted contraband pursuant to R.C. 2933.42 and were subject to disposition by R.C. 2933.43; and (3) since sale of the subject chickens would likely reintroduce the chickens into the scheme of cockfighting, the chickens should be humanely destroyed. Appellants filed a notice of appeal on the same day that judgment was entered as well as a motion for stay of the trial court judgment. In appellants' motion for stay, it was stated that Phillip Fleming and other members of the OGBA claimed ownership of the chickens and further stated that they did not claim ownership during the forfeiture proceedings "for fear of additional criminal prosecution." This court granted a stay pending disposition of this appeal and further allowed the Humane Society of the United States to file an amicus curiae brief.

Initially, appellee and the Humane Society assert that we cannot reach the merits of the instant appeal because neither of appellants asserted an ownership claim during the proceedings below. In order to have a right to appeal, one ordinarily must have been a party to the case in the trial court or attempted to intervene as a party. Whiteside, Ohio Appellate Practice (1987) 14, Section 3.13; State ex rel. Lipson v. Hunter (1965), 2 Ohio St.2d 225, 31 O.O.2d 453, 208 N.E.2d 133. In other words, "appeal lies only on behalf of a party aggrieved by the final order appealed from" and "[a]ppeals are not allowed for the purpose of settling abstract questions, but only to correct errors injuriously affecting the appellant." (Emphasis added.)Ohio Savings Bank v. Ambrose (1990), 56 Ohio St.3d 53, 55-56,563 N.E.2d 1388, at fn. 3, citing Ohio Contract Carriers Assn.,Inc. v. Pub. Util. Comm. (1942), 140 Ohio St. 160, 23 O.O. 369,42 N.E.2d 758, syllabus.

In the case at bar, OGBA initially claimed ownership of the chickens on May 13, 1991, but then declined to assert an ownership interest in the chickens on May 15, 1991 and proceeded on an amicus curiae basis. Additionally, there is no evidence in the proceedings below that Fleming ever claimed ownership of the chickens although in appellants' motion for stay, it is asserted that he was present at the forfeiture proceedings. Indeed, appellants' counsel never asserted below that he represented Fleming.

While not explicitly denominated as such, OGBA's counsel's statements to the trial court were essentially a motion to intervene pursuant to Civ.R. 24. In this regard, we recognize that Civ.R. 24(C) requires service of a written intervention motion. However, in the case at bar, where the only application for forfeiture in the record was filed on the same day that the final hearing on the application was held, we are not persuaded that strict compliance with Civ.R. 24(C) was required. To hold otherwise would preclude potential owners of seized property from being afforded the preparation time that common precepts of constitutional due process mandate. The record below indicates that OGBA's counsel initially asserted an ownership right on behalf of its members but then, shortly after the application was filed, declined to assert the right of ownership when pressed by the trial court and appellee.

In order to have standing to appear in a representative capacity for its members, an association must meet the standards set forth in Warth v. Seldin (1975), 422 U.S. 490,95 S.Ct. 2197, 45 L.Ed.2d 343, and Hunt v. Washington Apple AdvertisingComm. (1977), 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383. SeeAcademy of Nursing Homes v. Barry (1987), 37 Ohio App.3d 46,523 N.E.2d 523. An association has standing when: (1) its members would otherwise have standing to sue in their own right, (2) the interests it seeks to protect are germane to the organization's purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. R.C. 2307.27 provides that a person may intervene in a private action for recovery of personal property if he has an interest in the property. Moreover, Civ.R. 24(A) allows intervention of right when a state statute confers anunconditional right to intervene.

In Daughtry v. Mobile County Sheriff's Dept. ex rel. Purvis (Ala. 1988), 536 So.2d 953, the Supreme Court of Alabama held that a person claiming an interest in, inter alia, roosters seized during a raid of an alleged cockfight lacked standing to appeal a forfeiture entry ordering the destruction of the roosters. However, the Daughtry court emphasized that Daughtry had never intervened during the forfeiture proceedings and that he initially asserted his ownership rights in the seized roosters in his appellate brief. Furthermore, the Daughtry court held that motions and other actions should be "[v]iewed in the most liberal fashion" in determining whether an appellant had sought to intervene below so as to confer standing on appeal. Id. at 955, fn. 1. Conversely, in viewing the actions of OGBA in the "most liberal fashion" in the case at bar, it is manifest that at the initial hearing regarding the forfeiture proceeding, it asserted an ownership right in the seized chickens on behalf of its members. Indeed, at the conclusion of that hearing, even the court below noted the following:

"I am not addressing the merits of [the] claim of ownership, it sounds to me like the corporation is making some claim ofownership. There is the party which I suppose that you should proceed against." (Emphasis added.)

By subsequently holding that the chickens were contraband, the trial court should have acknowledged that pursuant to R.C.2933.43(C), OGBA was then entitled to at least four weeks' preparation time from the service of notice until the forfeiture hearing. See the disposition of appellants' first assignment of error, supra. Instead, the trial court proceeded to hold the hearing on the very day that the forfeiture application was filed. Given the extraordinary speed with which the trial court proceeded, in contravention of R.C. 2933.43(C), OGBA's counsel did not have the benefit of the statutorily prescribed time between notice and the date of the forfeiture hearing to sufficiently prepare a defense and a formal motion to intervene. OGBA's counsel explicitly objected at the initial hearing that the proceedings were "moving too fast." Accordingly, for the foregoing reasons, we are persuaded that OGBA's actions were tantamount to a motion to intervene in the court below. Cf.,e.g., In re Property Seized from Aronson (Iowa 1989),440 N.W.2d 394, where the Iowa Supreme Court held that a claimant lacked standing to appeal a cockfight forfeiture entry, but in such case, the claimant never attempted to intervene in the forfeiture proceedings and the statutorily prescribed notice procedure was rigidly followed (i.e., the notice of forfeiture was filed on September 21, 1987 and the forfeiture hearing was held on November 17, 1987).

Consequently, OGBA's actions, viewed in a most liberal fashion, constituted an intervention motion sufficient to satisfy the standing requirement provided OGBA was sufficiently "aggrieved" as discussed below. However, with respect to Fleming, there is no evidence in the record of the proceedings below either that OGBA's counsel represented him during those proceedings or that Fleming was even present. Accordingly, Fleming has no standing to appeal. See, e.g., Januzzi v.Hickman (1991), 61 Ohio St.3d 40, 45, 572 N.E.2d 642.

As to whether OGBA is sufficiently "aggrieved" to have standing on appeal, it is uncontroverted that OGBA is claiming an ownership interest in the chickens in a representative capacity on behalf of its members. Although the Humane Society contends that OGBA has an insufficient interest in the chickens, we note that an association, even in the absence of injury to itself, has standing to sue as representative of its members as long as it alleges that at least one of its members is suffering immediate or threatened injury as a result of the contested action. Warth,422 U.S. at 511, 95 S.Ct. at 2211, 45 L.Ed.2d at 361; Pennsylvania GamefowlBreeders Assn. v. Commonwealth (Pa.Cmwlth. 1987), 533 A.2d 838. During the proceedings held upon the application below, OGBA orally alleged that its members owned the chickens and, further, that its members did not want the chickens destroyed.

The dissent contends that OGBA cannot satisfy the standing requirements of Warth and Barry since the individual participation of its members is required due to the nature of the claim and/or the relief being sought. However, this is not a case where the association seeks damages on behalf of various members whose injuries may vary in specific amounts, thus requiring their individual participation. Rather, the state seeks enforcement of the statutory forfeiture provisions of R.C. Chapter 2933 against all chickens in its possession. Appellants contest the authority of the trial court to order destruction under that statutory scheme and complain of failure to comply with due process and statutory notice requirements. The outcome of this case does not turn on factual matters that are unique to certain individual members of the association that would require their participation. The questions before the trial court and this body are essentially legal in nature, not factual. Accordingly, individual participation was not required.

The close issue in this case is not whether OGBA can satisfy the legal test put forth in Warth, supra and Hunt, supra, for surely it does. Rather, the real question is whether it actually asserted those associational rights before the trial court in a manner sufficient to entitle it to proceed on behalf of its members. Given the procedural deficiencies and summary manner of the trial court proceedings, we are convinced that OGBA's imprecise attempt to intervene was sufficient to allow this case to proceed on the merits. Based upon the foregoing, we hold that OGBA possesses the requisite standing to appeal the judgment entered by the court below.

Appellants' first assignment of error asserts that the trial court erred in ordering forfeiture since the provisions of R.C.2933.41 pertaining to notice and service were not satisfied. Appellants additionally argue under their first assignment of error that the forfeiture provisions contain no authority to destroy live animals, and therefore, the trial court erred in ordering the chickens' destruction.

In the case at bar, the trial court determined that the seized chickens were both unclaimed and duly forfeited pursuant to R.C. 2933.41 and that they were contraband subject to disposition pursuant to R.C. 2933.43. The trial court further determined that "sufficient actual notice of the intended filing of the * * * application for disposition of forfeited property was made by Law Enforcement Officers and the media to potential claimants." We initially note the court erred in applying R.C.2933.41 to the May 15, 1991 application where that section refers only to "[a]ny property, other than contraband that is subject to the provisions of section 2933.43 of the Revised Code," since the court expressly determined that the chickenswere contraband.

With respect to notice, R.C. 2933.43(C) provides, in pertinent part:

"The petitioner shall conduct or cause to be conducted a search of the appropriate public records that relate to the seized property for the purpose of determining, and shall make or cause to be made reasonably diligent inquiries for the purpose of determining, any person having an ownership or security interest in the property. The petitioner then shallgive notice of the forfeiture proceedings by personal service orby certified mail, return receipt requested, to any personsknown, because of the conduct of the search, the making of theinquiries, or otherwise, to have an ownership or securityinterest in the property, and shall publish notice of theproceedings once each week for two consecutive weeks in anewspaper of general circulation in the county in which theseizure occurred. The notices shall be personally served,mailed, and first published at least four weeks before thehearing. They shall describe the property seized; state the date and place of seizure; name the law enforcement agency that seized the property and, if applicable, that is holding the property; list the time, date, and place of the hearing; and state that any person having an ownership or security interest in the property may contest the forfeiture." (Emphasis added.)

In the case at bar, it is obvious that the foregoing statutory procedure was not followed. Personal service of Sheriff McClure's May 15, 1991 application for forfeiture was not attempted on those individuals arrested at the cockfight event. Moreover, no publication pursuant to the statute was made. Finally, R.C. 2933.43(C) indicates that the notices must be "served, mailed, and first published at least four weeks before the hearing." Conversely, the only notice in the record is either the testimony and affidavit concerning a May 11, 1991 notification of the cockfight spectators or the May 15, 1991 application. The forfeiture hearing was held on May 15, 1991. Although appellants did receive actual notice of the hearing, as we noted previously, appellants' counsel repeatedly noted during the proceedings below that the hearings were "going to[o] fast here." Under these circumstances, it cannot be said that less than one day to arguably up to four days' notice of a forfeiture proceeding pursuant to R.C. 2933.43(C) sufficiently gives potential claimants the statutory "four weeks before the hearing" necessary to fully prepare their case. Accordingly, we find appellants' first contention under their first assignment of error to be meritorious.

We turn now to the trial court's order to destroy the chickens. R.C. 2933.43 provides in part:

"(D)(1) Contraband ordered forfeited pursuant to this section shall be disposed of pursuant to divisions (D)(1) to (7) of section 2933.41 of the Revised Code or, if the contraband is not described in those divisions, may be used, with the approval of the court, by the law enforcement agency that has custody of the contraband pursuant to division (D)(8) of that section. In the case of contraband not described in any of those divisions and of contraband not disposed of pursuant to any of those divisions, the contraband shall be sold in accordance with this division or, in the case of forfeited moneys, disposed of in accordance with this division. If the contraband is to be sold, the prosecuting attorney shall cause a notice of the proposed sale of the contraband to be given in accordance with law, and the property shall be sold, without appraisal, at a public auction to the highest bidder for cash."

R.C. 2933.41(D)(1) to (7), referring to items such as drugs, firearms, obscene materials, alcohol, money, vehicles, and computers, are inapplicable in the case at bar. Therefore, since the law enforcement agency with custody of the chickens did not want to use the chickens, they were statutorily mandated to sell the chickens pursuant to R.C. 2933.43(D). Assuming,arguendo, that the trial court was not limited to the options provided in R.C. 2933.43(D) as a result of its express finding that the chickens were contraband, we are unpersuaded that R.C.2933.41(D)(8)'s catchall disposition option allowing the disposal of seized property "in another manner that the court considers proper in the circumstances" would have allowed the destruction of the chickens. As appellants aptly note, the West Virginia Supreme Court has held that absent any specific statutory authorization, a court may not order the destruction of chickens seized for illegal cockfighting, by stating as follows:

"In West Virginia, penal statutes are strictly construed.State v. Vandall, 170 W. Va. 374, 294 S.E.2d 177 (1982); Dials v.Blair, 144 W. Va. 764, 111 S.E.2d 17 (1959); Clear Fork Coal Co.v. Anchor Coal Co., 105 W. Va. 570, 144 S.E. 409 (1928). Generally, penal statutes will not be extended by construction, but must be limited to cases clearly within its language and spirit. Myers v. Murensky, 162 W. Va. 5, 245 S.E.2d 920 (1978). If the legislature desired to allow the destruction of gamecocks, it could have specifically authorized such destruction.

"Thus, absent any specific statutory authorization, a court may not order destruction of the birds in question. Although we have discussed other related statutory authority, none explicitly provides for the destruction of gamecocks.

"We recognize the irony of not allowing the gamecocks to be humanely destroyed in light of the fact that they cruelly kill each other during cockfighting. It is not our function, however, to rewrite the pertinent penal statute to authorize the humane destruction of gamecocks seized as the result of illegal cockfighting." Ray v. Mangum (1986), 176 W. Va. 534,346 S.E.2d 52, at 54-55.

As with the West Virginia statutes pertinent in Ray, neither R.C. 2933.41(D) nor 2933.43(D) specifically authorizes the killing of live animals; the enumerated categories in R.C.2933.41(D)(1) to (7) all refer to inanimate, non-living, personal property. Based upon the rationale of Ray and the applicable Ohio statutes, we hold that R.C. 2933.41(D)(8)'s catchall clause was not intended to refer to destruction of live animals, such as the seized chickens. If the General Assembly had desired to give courts this option in forfeiture proceedings, it would have done so by express language. Consequently, the trial court erred in ordering the destruction of the chickens where such destruction was not authorized by either of the arguably relevant statutes. Appellants' first assignment of error is sustained.

Appellants' second assignment of error asserts that the forfeiture judgment should be reversed because it amounts to a second criminal offense which appellee failed to seek prior to sentencing. Where property is ruled contraband pursuant to R.C.2933.42(B), forfeiture of that property pursuant to R.C. 2933.43 constitutes a separate criminal penalty in addition to the penalty the defendant faces for conviction of the underlying felony. State v. Casalicchio (1991), 58 Ohio St.3d 178,569 N.E.2d 916, syllabus. The forfeiture violates both the Ohio and United States Constitutions where the state fails to seek forfeiture prior to the sentencing on the underlying criminal offense. Id. at 183, 569 N.E.2d at 921.

Casalicchio is arguably inapposite to the case at bar where Mowery's testimony indicated that appellee had sought the forfeiture and destruction of the chickens prior to the May 14, 1991 sentencing on the underlying cockfighting charges. However, we need not decide this issue. An appellate court will not consider any error, including constitutional error, which counsel for a complaining party could have, but failed to call to the trial court's attention at a time when such error could have been avoided by the trial court. State v. 1981 Dodge RamVan (1988), 36 Ohio St.3d 168, 170, 522 N.E.2d 524, 526; Statev. Awan (1986), 22 Ohio St.3d 120, 122, 22 OBR 199, 201,489 N.E.2d 277, 279. Appellants could have, but failed to raise the double jeopardy issue below and further, unlike Casalicchio,supra, 58 Ohio St.3d at 183, 569 N.E.2d at 921, fn. 4, appellants did not "steadfastly maintain the unconstitutionality of the forfeiture" during the proceedings below. To the extent that appellants would have raised this issue if afforded the appropriate statutory notice and prehearing time to prepare, this is addressed in our disposition of their first assignment of error. Appellants' second assignment of error is overruled.

In that we have sustained appellants' first assignment of error, the judgment entered by the court below is reversed and remanded for further proceedings consistent with this opinion with respect to OGBA. The appeal is dismissed as to Fleming.

Appeal dismissed in partand judgment reversed.

GREY, J., concurs.

ABELE, J., dissents.