Read an analysis of the argument here.

On May 12, 2021, the Supreme Court of Ohio will hear oral argument in State of Ohio v. James O’Malley, 2020-0859. At issue in this case is whether Ohio’s criminal vehicle forfeiture statute constitutes an excessive fine in violation of the Eighth Amendment to the U.S. Constitution.  Also at issue is whether the statute infringes the equal protection guarantee under the U.S. and Ohio Constitutions.

Case Background

On July 4, 2018, James O’Malley was stopped by an Ohio police officer for driving outside the marked lines. Suspecting O’Malley was intoxicated, the officer conducted a field sobriety test. Ultimately, O’Malley was charged, among other things, with one count of operating a vehicle under the influence (“OVI”).

O’Malley entered a plea of no contest. Medina Municipal Court Judge Gary Werner found O’Malley guilty of violating Ohio’s OVI statute as codified in R.C. 4511.19. This OVI conviction was O’Malley’s third within ten years.

R.C. 4511.19(G) requires that courts impose certain penalties against offenders who have been convicted of three OVIs within a ten year period. Pertinent here, R.C. 4511.19(G)(1)(c)(v) states that if the vehicle used in the OVI offense is registered in the name of the offender, the court must conduct a mandatory criminal forfeiture proceeding. Pursuant to that statute, O’Malley’s truck was seized, and forfeiture proceedings were begun in accordance with R.C. 4503.234.

O’Malley’s truck, a 2014 Chevrolet Silverado, had an approximate value of $31,000. At the forfeiture hearing, O’Malley testified that due to the loss of his truck, he had lost his job, was unable to find work without a means of transportation, and had to move in with his grandmother, who was supporting him. While the truck was registered and titled in O’Malley’s name, he had received it from his grandparents in exchange for a $5,000 down payment. The truck was O’Malley’s only personal asset, and he argued the truck’s value greatly exceeded the maximum fine in his case.

Judge Werner rejected O’Malley’s arguments and ordered forfeiture of the truck. First, the judge noted that O’Malley had no notable expenses or obligations as he had enjoyed a stable standard of living since the OVI offense, even without employment. Second, O’Malley’s investment in the truck was only $5,000 and because he was subject to $2,750 in OVI fines, this fine-to-forfeiture ratio was low enough not to constitute an excessive fine. Third, any financial hardship to O’Malley from the forfeiture is comparatively low because he was single, lived with his grandmother, and had no family to support. O’Malley timely appealed.

The Appeal

In a 2-1 decision authored by Judge Julie Schafer, the Ninth District Court of Appeals affirmed the trial court’s forfeiture order. Judge Jennifer Hensal concurred in judgment only. Judge Donna Carr dissented in part.

The lead opinion found that the trial court did consider O’Malley’s financial position in determining whether forfeiture of his truck constituted an excessive fine. First, the trial court considered the fine-to-forfeiture ratio in O’Malley’s case as compared to other similar cases. Second, the trial court did discuss the hardship that forfeiture would impose on O’Malley, given his employment status and living arrangements. After balancing these proportionality factors, the trial court properly concluded the forfeiture was not excessive.

The lead opinion also found O’Malley’s equal protection arguments to be without merit. While R.C. 4511.19 does impose a higher forfeiture punishment for offenses committed in vehicles registered in the offender’s name, R.C. 4511.19 does not make a distinction based on a suspect class. Under an equal protection analysis, a non-suspect classification is subject only to the highly deferential rational basis review, which is satisfied here. First, R.C. 4511.19 embodies the State’s valid, legitimate interest in preventing impaired driving. And second, the narrow arguments O’Malley made before the trial court, which he is limited to on appeal, fail to show how the forfeiture distinctions made in R.C. 4511.19 are not rationally related to deterring impaired driving.

Judge Hensal disagreed with the lead opinion’s finding that O’Malley failed to develop his argument that the forfeiture constituted an unconstitutionally excessive fine. But she agreed that on the merits, it did not constitute an excessive fine given that O’Malley’s investment in the truck was only $5,000, less than three times the maximum fine for the offense. She also agreed that the equal protection argument was without merit.

Judge Carr dissented on the Eighth Amendment holding. She would find that the trial court failed to consider the drastic impact that forfeiture of O’Malley’s truck would have on his personal financial condition as an unemployed single person living with his grandmother.

Key Statutes and Precedent

U.S. Constitution, Amendment VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”)

U.S. Constitution, Amendment XIV, Section 1 (“No State shall […] deny to any person within its jurisdiction the equal protection of the laws.”)

Ohio Constitution, Article I, Section 2 (“[a]ll political power is inherent in the people. Government is instituted for their equal protection and benefit.”)

R.C. 4511.19(G)(1)(c)(v) (“an offender who, within ten years of the offense, previously had been convicted of or pleaded guilty to two [OVI] violations or other equivalent offenses is guilty of a misdemeanor. The court shall sentence the offender to all of the following: (v) ‘In all cases, if the vehicle is registered in the offender’s name, criminal forfeiture of the vehicle involved in the offense in accordance with section 4503.234 of the Revised Code.’”)

R.C. 4503.324 (Ohio’s criminal forfeiture of vehicle statute. Details the procedures by which courts must conduct forfeiture hearings, limits what vehicles can and cannot be forfeited, and directs law enforcement agencies on what to do with forfeited vehicles.)  

Timbs v. Indiana, 139 S.Ct. 682 (2019) (Incorporated the Excessive Fines Clause to the States. Economic sanctions must be proportional to the wrong and not be so large as to deprive an offender of his livelihood.)

United States v. Bajakajian, 524 U.S. 321 (1998) (a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense. In assessing gross disproportionality, courts must consider whether the violation was willful, whether the forfeited property was obtained by illegal means, whether the violator fit into the class of persons for whom the statute was principally designed for, the maximum statutory punishment, and the harm caused by the violator.)

United States ex rel. Smith v. Gilbert Reality Co., 840 F.Supp. 71 (1993) (found a civil statutory penalty of $290,000 unconstitutionally excessive where the actual damages were $1,630.)

State v. Ziepfel, 107 Ohio App.3d 646 (1st Dist. 1995) (Noting that the fine to forfeiture ratio is only one factor in an Excessive Fine analysis. Upheld the forfeiture of a $23,000 motorcycle when the maximum offense fine was $10,000.)

State v. Hill, 70 Ohio St.3d 25 (1994) (Only Supreme Court of Ohio case applying the Excessive Fines Clause. “Prior to entering an order of forfeiture, the trial court must make an independent determination whether forfeiture of that property is an ‘excessive fine’ prohibited by the Excessive Fine Clauses of the Ohio and United States Constitutions.”)

State v. Kish, 2003-Ohio-2426 (9th Dist.) (to determine whether a forfeiture is a constitutionally excessive fine, a court must conduct a proportionality review. A proportionality review entails: “(1) the culpability of the defendant; (2) the gravity of the offense; (3) the relationship of the property to the offense; and (4) the harm to the community.” Also to be considered are the fair market value of the property, the intangible and subjective value of the property, harm caused by illegal activity, whether defendant was directly involved in the activity, and the hardship to the defendant, including the effect of forfeiture on the defendant’s family and financial condition.)

Votes to Accept the Case

Yes: Chief Justice O’Connor*, Justices Kennedy, French, Fischer, Donnelly, and Stewart.

No: Justice DeWine

*Chief Justice O’Connor would accept review of Proposition of Law 1 only.

O’Malley’s Propositions of Law Accepted for Review

Proposition of Law 1

Was the vehicle forfeiture order under R.C. 4511.19 (G)(1)(c)(v), as applied to Appellant, an unconstitutionally excessive fine in violation of the Eighth Amendment to the U.S. Constitution?

Proposition of Law 2

Is Ohio’s OVI forfeiture statute (R.C. 4511.19 (G)(1)(c)(v)) unconstitutional under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and Section Two, Article One of the Ohio Constitution?

O’Malley’s Argument

Forfeitures are disfavored in the law. Ohio’s OVI criminal forfeiture statute violates the Excessive Fines clause of the Eighth Amendment. The Ninth District improperly relied on a line of 1990s “war on drugs” cases and entirely ignored new developments in Eighth Amendment interpretation. The United States Supreme Court and other state supreme courts have recently incorporated a concept of proportionality that balances the harshness of the punishment, the severity of the offense, and the defendant’s culpability. In so balancing, courts must consider the fines to forfeiture ratio and if a defendant forfeits something of value that is grossly disproportionate to the gravity of the underlying offense, there is an Eighth Amendment violation. The only Supreme Court of Ohio case to apply the Excessive Fines Clause was issued in 1994. Since then, lower courts have struggled to apply the clause uniformly and have relied on older cases that should hold little weight today.

In light of these new case developments, O’Malley’s forfeiture was unconstitutionally excessive. As to harshness of the punishment, the maximum statutory fine for an OVI is $2,750. O’Malley’s forfeiture of his truck came at the cost of approximately $38,000—a fines to forfeiture ratio of 1:12. Under the new Eighth Amendment framework, various courts have held as unconstitutional ratios of 1:3, 1:5, and 1:7. At 1:12, O’Malley’s is much higher. The Court should begin with the presumption that a forfeiture so far in excess of the statutory fine range is unconstitutional. Further, the lower courts failed to consider O’Malley’s unique hardships. The truck was O’Malley’s only asset. Because transportation is integral to his employment, O’Malley has since lost that job, cannot find new employment, and the prospects of future employment are severely hindered. O’Malley is not able to purchase a new vehicle and is now financially dependent on his grandmother.

Drunk driving is undeniably a serious offense, but O’Malley has already paid a hefty price far beyond the vehicle forfeiture. O’Malley has paid fines, court costs, spent 30 days in jail, had his license suspended for 5 years, 3 years of probation, and mandatory alcohol treatment. In respect to the defendant’s culpability, O’Malley’s OVI only presented a potential harm—no person or property were harmed during this offense. Based on the totality of the circumstances, the forfeiture of the truck was an excessive fine, and was grossly disproportionate to the offense committed.

Ohio’s OVI criminal forfeiture statute also violates the Equal Protection Clauses of the U.S. and Ohio Constitutions. For individuals who have 3 OVI convictions within 10 years, R.C. 4511.19 creates two classes of persons—owners and non-owners of vehicles. The statute then punishes those two classes differently. If an offender, like O’Malley, drives a car registered in his own name, that vehicle is subject to forfeiture. But if O’Malley had been lucky enough to drive a rental car or if his truck had been registered in his grandmother’s name, the car would not be subject to forfeiture and the maximum penalty would have been only $2,750. That distinction is arbitrary, and especially so given that the vehicle ownership is not an element of the offense. Ohio has a legitimate interest in deterring and preventing recidivism of impaired driving. But taking an individual’s vehicle only because it is registered in the offender’s name does not further those interests.

First, there are less intrusive alternatives that R.C. 4511.19 could impose. The statute could cap damages for all offenders or subject every offender, regardless of ownership, to a fine equal to the value of the vehicle driven in commission of the offense. Second, both owners and non-owners are subject to jail time, license suspensions, probation, and treatment—all equally applicable to all offenders. The only disparate punishment is that owners have their vehicles taken. These non-discriminatory and equally applicable punishments cast doubt on the State’s claim that vehicle forfeiture for owners is necessary to accomplish its interests. Third, this unequal treatment is also relevant to the Eighth Amendment analysis. Imagine an OVI offender driving a $100,000 car. If that car is registered in his or her own name, the penalty is over $100,000. If not in his or her own name, the maximum penalty is a mere $2,750. Ohio courts have struck down similarly irrational and untenable distinctions. The Court should do the same here.

State’s Argument

Only when a forfeiture is grossly disproportionate to the gravity of the misconduct does an Eighth Amendment violation occur. Here, forfeiture of the vehicle used to commit repeated offenses is entirely proportional. This was O’Malley’s third OVI offense in ten years, he was severely intoxicated on the night of the offense, he refused testing, and did not even know his address. He poses a grave risk to the driving public. Vehicle forfeiture is particularly appropriate for repeat offenders who have refused to change their habits. Courts in Ohio and other neighboring states have held that fine to forfeiture ratios of 1:21 do not violate the Eighth Amendment. O’Malley’s is only 1:11. O’Malley has fallen well short of his burden in proving that the vehicle forfeiture is an unconstitutionally excessive fine.

O’Malley’s equal protection claim similarly fails. First, O’Malley is instituting a facial challenge to the law – an unusually high standard to overcome. Second, R.C. 4511.19 must only survive rational basis review – a standard that presumes legislative validity. Ohio has a legitimate interest in deterring drunk driving. And vehicles are inextricably linked to the offense of drunk driving. By permitting the forfeiture of those vehicles that are registered in the name of the offender, the legitimate goals of the State are satisfied. As the lower courts in this case found, one group of offenders owns the instrumentality of their offense and the other group does not. Tying the forfeiture penalty to repeat offenders who use their own vehicles is rational and well within the presumption of legislative validity. The Ninth District’s decision should be affirmed.

Amicus in Support of O’Malley

American Civil Liberties Union of Ohio Foundation, Inc.

The ACLU, one of the oldest and largest organizations comprised of Bill of Rights’ supporters and activists, has over 1.5 million members and approximately 200,000 members in Ohio. The ACLU is interested in preventing abuses under the Eighth Amendment, ending predatory criminal fines through asset forfeiture, and securing fair treatment for low-income and disadvantaged Ohioans. Further, this is an important moment because for the first time in twenty five years, the Court can clarify how lower courts should apply the Excessive Fines Clause.

In light of this opportunity, the Court’s clarifying test must incorporate an individual’s unique financial hardship into the Eighth Amendment’s proportionality test. The amendment’s history and original purpose—tracing all the way back to the Magna Carta and the American Founding—dictates such a result. Courts in other states such as Indiana, Colorado, Montana, Pennsylvania, Tennessee, and Louisiana have done so by following the U.S. Supreme Court’s ruling in Timbs v. Indiana. Ohio should do the same because currently, R.C. 4511.19 treats indigent and affluent individuals differently and offenders of less means face unfair fines. As exemplified by this case, the same forfeiture that would not cause a rich man to blink has left O’Malley without an object of value to his name for the same exact offense. Before requiring a forfeiture, courts must consider the financial impact such a penalty will have on that particular individual.

Student Contributor: Brandon Bryer