Although I would prefer to concur with the majority in this case, I do not believe that the law of Ohio affords a good faith defense to an officer who is the subject of an amercement proceeding.
Despite the principle of strict construction of the amercement statute, courts have, in the past, declined to create a "good faith" defense to an amercement action. See, e.g.,Wadworth v. Parsons (1834), 6 Ohio 449; Rodgers v. Rodgers (1991), 74 Ohio App.3d 580, 599 N.E.2d 751.
The only court to permit the defense of "good faith" in an amercement action is the Tuscarawas County Court of Common Pleas. See Mine Safety Appliances Co. v. Best (1947), 49 Ohio Law Abs. 552, 76 N.E.2d 108. The version of the amercement statute applied in Mine Safety Appliances Co. was different from the current provisions in that an officer who demonstrated "to the satisfaction of the court, that he was prevented by unavoidable accident" from executing or returning a writ could not be amerced. Id. at 554, 76 N.E.2d at 109, quoting G.C. 12105.
Moreover, the rule set forth in Mine Safety Appliances Co. reads:
"While a sheriff is justified in executing a writ that is regular on its face and which may have been wrongfully issued, he may not be amerced for failure to complete an executionwhere no injury has resulted, if he has acted in good faith, and he has made a return within sixty days * * *." Id.
It is plain that this rule is not applicable to the instant case because admitted injury did occur to appellants as a result of the sheriff's neglect in failing to levy on Bonita Baldwin's personal property. Cf. Rodgers v. Rodgers,74 Ohio App.3d at 586-587, 599 N.E.2d at 755 (Harsha, J., dissenting) (defense of good faith can be employed in deciding whether an officer's conduct is within the spirit of the amercement statute);Wadworth v. Parsons (1834), 6 Ohio 449, 452 (Wright, J., dissenting) (implying that if a sheriff executes a writ "without fault," he acts in good faith and cannot be amerced).
Further, Ohio courts have had ample opportunity to create a "good faith exception" and have declined to so. In its most recent pronouncement involving R.C. Chapter 2707, the Supreme Court of Ohio decried amercement as an "archaic procedure."Ryan v. Carter (1993), 67 Ohio St.3d 568, 569, 621 N.E.2d 399,401. Nevertheless, the Ryan court followed the "Draconian" enforcement procedures in the statute and amerced the sheriff in that case for the full amount of the judgment owed the judgment creditor plus a ten percent surcharge. Id. *Page 211 The court specifically stated that it would enforce the provisions of R.C. Chapter 2707 until the General Assembly repealed the statute. Id. Although Ryan does not deal directly with the "good faith" question, it is evidence of the high court's intention to, in a case where a sheriff neglects to execute on a writ, unconditionally impose the penalties provided in the statute.
Finally, I would decline to create a "good faith" defense based on the fact that the sheriff in this case was informed by three individuals that Bonita Baldwin had bankruptcy "protection." The Conkling court indicated that substantial compliance with the statute governing an execution on a judgment was necessary prior to considering whether a sheriff's conduct was outside the "spirit" of the amercement statute. Id.,10 Ohio St. at 32. Further, even in his dissent in Rodgers, Judge Harsha noted that the officer in that case had "substantially complied" with his duties in addition to acting in good faith. Id.,74 Ohio App.3d at 587, 599 N.E.2d at 755.
Unlike the circumstances in Mine Safety Appliances Co. orRodgers or even in Ryan, the sheriff in the case before us did not substantially comply with his statutory duties in executing the June writ. That is, he made no attempt to execute the writ. Rather, the stipulated record reveals that, despite the fact that the writ set forth specific property to be seized and the fact that appellants' attorney was present and urging him to seize this property, the sheriff relied on the hearsay information provided by persons, other than appellants, to avoid his mandatory duty. The sheriff's reliance is not a defense to an allegation of a failure to levy process. See, generally, 70 American Jurisprudence 2d (1987) 359, Sheriffs, Police and Constables, Section 173.
To the contrary, the fact that certain property was listed as exempt in the writ and the conflict in the status of Bonita Baldwin put the sheriff on notice to inquire into the realities of the situation. He did not do so. Instead, he unjustifiably relied on hearsay information, neglected to conduct any further inquiry, made no further effort to execute on the writ and returned the writ (bearing false, hearsay information) only four days after the attempt to execute and over one month before Bonita Baldwin filed a petition in bankruptcy. This evidence does not support the creation of a "good faith" defense in this particular case.
Accordingly, while I agree with the Supreme Court of Ohio in deeming the amercement statute "archaic" and "Draconian," the legislature has not yet taken any action to repeal or amend R.C. Chapter 2707 and I cannot agree with the majority in the creation of a "good faith" exception. *Page 212