Opinion
No. 91-577
Submitted April 23, 1991 —
Decided August 28, 1991.
IN MANDAMUS.
ON MOTIONS AND CROSS-MOTION FOR SUMMARY JUDGMENT.In his complaint in mandamus, relator, Jerry W. Chandler, alleges that respondent Cincinnati police officer Jeff Butler and the respondent Cincinnati Police Department seized $4,815 from him when they arrested him for drug abuse in 1989. He claims an absolute right to have the money returned to him under R.C. 2933.43(C), which provides in part:
"* * * Any property seized because of its relationship to an underlying criminal offense or administrative violation shall be returned to its owner if charges are not filed in relation to that underlying offense or violation within thirty days after the seizure, if such charges are filed and subsequently are dismissed, or if such charges are filed and the person charged does not plead guilty to and is not convicted of the offense or does not admit and is not found to have committed the violation."
The respondent Hamilton County Prosecuting Attorney has filed a motion for summary judgment. Respondents officer Butler, the Cincinnati Police Department, and the city of Cincinnati have filed a motion to dismiss. Both motions attach the affidavit of police sergeant Paul Klusmeier, which stated that the $4,815 was turned over to the United States Drug Enforcement Agency, which caused it to be forfeited administratively. Relator also filed a motion for summary judgment, restating his belief that he has an absolute right Under R.C. 2933.43(C) to have respondents return the money.
Jerry W. Chandler, pro se. Fay DuPuis, City Solicitor, and Kim Wilson Burke, for respondents Jeff Butler et al.
Christian J. Schaefer, assistant prosecuting attorney, for respondent Hamilton County Prosecuting Attorney.
The undisputed facts show that the $4,815 in question was forfeited, pursuant to federal law. See Section 881, Title 21, U.S.Code. Under Article VI of the United States Constitution, the federal Constitution and laws of the United States are made "the supreme law of the land." Since the money was forfeited under federal law, it is immaterial what R.C. 2933.43 states about its return. Relator's claim, if any, is against the federal government.
Accordingly, pursuant to Civ.R. 12(B), we convert respondents' officer Butler's, Cincinnati Police Department's, and city of Cincinnati's motion to dismiss into a motion for summary judgment, grant it and respondent Hamilton County Prosecuting Attorney's motion for summary judgment, and deny relator's motion for summary judgment.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, H. BROWN and RESNICK, JJ., concur.
WRIGHT, J., dissents in part.
I concur with the court's ruling on the prosecutor's office's motion for summary judgment, but I dissent from its ruling on Cincinnati's motion for summary judgment.