Opinion
No. 87-01195.
Decided March 2, 1988.
John F. Zimmerman, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and Jordan Finegold, Assistant Attorney General, for defendant.
The court's December 7, 1987 order, providing a time frame for the filing of briefs and joint stipulation of facts, was properly complied with by the litigants. The court has reviewed and evaluated the record in its entirety and renders the decision herein.
Succinctly stating the facts, in 1985 Jerry Prescott signed a promissory note and security agreement to secure the payment of the principal sum of $6,325.77 to the plaintiff, the Hicksville Bank, as secured party, granting the plaintiff a security interest in a 1972 Reinell twenty-four-foot cabin cruiser and trailer (herein "boat"). On or about November 19, 1985, the defendant, the Ohio Department of Natural Resources, seized the boat, pursuant to R.C. 1531.20, due to Jerry Prescott's misconduct, i.e., illegal fishing.
Forfeiture proceedings were instituted by the defendant and, and a result, the boat became the property of the state of Ohio. Plaintiff has demanded that the defendant release the boat because of its security interest, but defendant has refused.
R.C. 1531.20 (seizure of device used in unlawful taking of wild animals) states, in pertinent part:
"Any boat * * * used in the unlawful taking of wild animals is a public nuisance. Each game protector * * * shall seize and safely keep such property and * * * shall institute, within five days, proceedings in a proper court of the county for its forfeiture. A writ of replevin shall not lie to take such property from his custody or from the custody or jurisdiction of the court in which such proceeding is instituted, nor shall such proceeding affect a criminal prosecution for the unlawful use or possession of such property."
Forfeiture is defined as "[s]omething to which the right is lost by the commission of a crime or fault or the losing of something by way of penalty. Loss of some right or property as a penalty for some illegal act." Black's Law Dictionary (5 Ed. 1979) 584. (Citations omitted.) Based on the facts pertaining to the incident which precipitated this action, the court finds that the defendant's seizure of the boat and subsequent forfeiture action were appropriate pursuant to R.C. 1531.20. Further, this court agrees with the Sixth District Court of Appeals which indicated that such a procedure is an appropriate method to deter illegal fishing.
In State v. Barker (1983), 8 Ohio St.3d 39, 8 OBR 401, 457 N.E.2d 312, the court held that forfeiture, pursuant to R.C. 1531.20, does not offend due process of law under the Constitutions of the United States and the state of Ohio. Further, the court indicated that the legislature has not differentiated between the owner (who has a security interest in the device) or the user (utilizing the device for illegal purposes) and, thus, a total loss of title rights to a device occurs when it is used for illegal purposes and subsequently impounded. See, also, Lindsay v. Cincinnati (1961), 172 Ohio St. 137, 15 O.O.2d 278, 174 N.E.2d 96.
In Calero-Toledo v. Pearson Yacht Leasing Co. (1974), 416 U.S. 663, 683, 94 S.Ct. 2080, 2091-2092, 40 L.Ed.2d 452, 468, the court stated that the forfeiture process due to illegal conduct, as described above, is not rendered unconstitutional because the owner of the seized property is innocent of any wrongdoing. Though a secured creditor may believe that it is unfair to be penalized for the illegal activity of its debtor, it is the court's opinion that the act of forfeiture due to illegal activity imposes a just economic penalty, rendering illegal behavior unprofitable.
Thus, in the case at bar, the defendant has legal title to the boat and its ownership cannot be disturbed by plaintiff's action. In view of the circumstances of this matter, the plaintiff's method of recourse for payment of the promissory note is enforcement of judgment against Jerry Prescott.
Therefore, upon review of the record, this court finds that the defendant's contentions, and law cited in its brief, are well taken. Accordingly, judgment is rendered for the defendant, Ohio Department of Natural Resources, and against the plaintiff, the Hicksville Bank.
Judgment for defendant.
WILLIAM F. BROWN, J., retired, of the Coshocton County Court of Common Pleas, sitting by assignment.