I respectfully dissent.
I agree with the majority opinion that the trial court did not comply with the notice requirements set forth in R.C.2933.43. I further agree that absent statutory authorization, a court is not permitted to order the destruction of seized property. Clearly, the Revised Code contains no such language specifically authorizing the destruction of the property. Although I am in agreement that the proceeding below was flawed because the trial court did not comply with the applicable statutes, I am not persuaded that appellants possess the requisite standing to appeal the trial court's judgment. Therefore, I believe we cannot consider the merits of this appeal and the appeal should be dismissed.
I It is undisputed that appellee did not, pursuant to R.C.2933.43(C), provide notice of the forfeiture proceeding to those persons who may have an ownership interest in the seized property.1 Appellee asserts the owners of the *Page 491 seized property received "actual notice" of the forfeiture proceeding at the time the property was seized. If it could be established that all owners of the seized property received actual notice of the proceeding, this assertion may have merit.2 However, after a review of the proceeding below, I agree with the majority that this assertion is not well taken.
The record does not reveal whether all persons who may have an ownership interest in the property, whether or not present during the actual seizure of the property, received notice of the forfeiture proceeding. The purpose of the publication of notice is to ensure that all owners of seized property receive notice that their property is the subject of a forfeiture proceeding. I recognize that in the instant case the nature of the seized property may create *Page 492 substantial difficulties in locating those who may have an ownership interest in the property. Nevertheless, that is precisely the reason the statute requires the publication of notice. Thus, after a review of the record, I believe the notice of the forfeiture proceeding was deficient both upon statutory grounds and constitutional due process grounds.
II I dissent because I am not persuaded appellants have standing to appeal the trial court's judgment. Ordinarily, to have a right to appeal one must have been a party to the case in the trial court or at least have attempted to intervene as a party.State ex rel. Lipson v. Hunter (1965), 2 Ohio St.2d 225, 31 O.O.2d 453, 208 N.E.2d 133. One must be able to demonstrate that one has a present interest in the litigation and that the lower court's judgment caused prejudice. In re Love (1969), 19 Ohio St.2d 111, 48 O.O.2d 107, 249 N.E.2d 794. A "real party in interest" is one who has a real interest in the subject matter of the litigation, and not merely an interest in the action itself, West Clermont Edn. Assn. v. West Clermont Local Bd. ofEdn. (1980), 67 Ohio App.2d 160, 21 O.O.3d 457, 426 N.E.2d 512, that is, one who is directly benefitted or injured by the outcome of the case. Id.
An association, under certain circumstances, may have standing to represent the members of its association. In OhioAcademy of Nursing Homes v. Barry (1987), 37 Ohio App.3d 46, 47,523 N.E.2d 523, 524-525, the court wrote:
"A party has standing to invoke the jurisdiction of the court if he has, in an individual or representative capacity, some real interest in the subject matter of the action. State ex rel.Dallman v. Court of Common Pleas (1973), 35 Ohio St.2d 176 [64 O.O.2d 103, 298 N.E.2d 515] * * *. An association has standingto bring suit on behalf of its members, whether the association is incorporated or unincorporated, when: (1) its members wouldotherwise have standing to sue in their own right; (2) theinterests it seeks to protect are germane to the organization'spurpose; and (3) neither the claim asserted nor the reliefrequested requires the participation of individual members inthe lawsuit. State ex rel. Connors v. Ohio Dept. of Transp. (1982), 8 Ohio App.3d 44, 47 [8 OBR 47, 455 N.E.2d 1331] * * *;Fraternal Order of Police v. Columbus (1983), 10 Ohio App.3d 1 [10 OBR 6, 460 N.E.2d 639] * * *. Both of these cases adopted 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. WashingtonState Apple Advertising Comm. (1977), 432 U.S. 333, 343 [97 S.Ct. 2434, 2441, 53 L.Ed.2d 383, 394] * * *." (Emphasis added.)
See, also, Ohio State Pharmaceutical Assn. v. Wickham (1989),61 Ohio App.3d 488, 573 N.E.2d 148. *Page 493
Before an association can be found to have standing to assert a claim on behalf of the association's members, it must be established that: (1) its members would otherwise have standing to assert a claim in their own right, (2) the interests the association seeks to protect are germane to the organization's purpose, and (3) the nature of the claim and the relief sought is not peculiar to individual members of the association and individual participation of the members is not indispensable to the proper resolution of the action because individualized proof is not required.
In State ex rel. Connors v. Ohio Dept. of Transp. (1982),8 Ohio App.3d 44, 8 OBR 47, 455 N.E.2d 1331, the court quoted and followed the following propositions of law from two seminal United States Supreme Court cases involving associational standing:
"With regard to an association's standing to represent its members in a suit, the Supreme Court has stated, in Warth v.Seldin (1975), 422 U.S. 490 [95 S.Ct. 2197, 45 L.Ed.2d 343] * * * that:
"`Even in the absence of injury to itself, an association mayhave standing solely as the representative of its members. * * * The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. * * * So long as this can be established, and so long as the nature ofthe claim and of the relief sought does not make the individualparticipation of each injured party indispensable to properresolution of the cause, the association may be an appropriaterepresentative of its members, entitled to invoke the court'sjurisdiction.'
"Later, the court, in Hunt v. Washington Apple AdvertisingComm. (1977), 432 U.S. 333 [97 S.Ct. 2434, 53 L.Ed.2d 383] * * * reviewed Warth and stated:
"`Thus we have recognized that an association has standing tobring suit on behalf of its members when: (a) its members wouldotherwise have standing to sue in their own right; (b) theinterests it seeks to protect are germane to the organization'spurpose; and (c) neither the claim asserted nor the reliefrequested requires the participation of individual members inthe lawsuit.'" (Emphasis added.)
Recently, in Internatl. Union, United Automobile, Aerospace Agricultural Implement Workers of America v. Brock (1986),477 U.S. 274, 287, 106 S.Ct. 2523, 2531, 91 L.Ed.2d 228, 241, the court emphasized that associations do not have standing to sue on behalf of members where the fact and extent of the members' injuries require individual proof: *Page 494
"* * * In Warth, we noted that even where the members of an association have suffered the sort of injury that might otherwise support a suit by the association, `whether an association hasstanding to invoke the court's remedial powers on behalf of itsmembers depends in substantial measure on the nature of therelief sought.' 422 U.S., at 515 [95 S.Ct. at 2213,45 L.Ed.2d at 364] * * *. An organization of construction firms, we held, could not seek damages for the profits and business lost by its members because `whatever injury might have been suffered ispeculiar to the individual member concerned, and both the factand extent of injury would require individualized proof.' Id. ** * Each member therefore had to be a party to the suit, and theassociation lacked standing to proceed on his behalf." (Emphasis added.)
Our court has previously recognized the proposition of law that where a claim requires the participation of individual members, the association lacks standing to sue on behalf of the members. In Lake White Community Assn., Inc. v. Lucas (Dec. 13, 1990), Pike App. No. 432, unreported, 1990 WL 253039, we wrote:
"* * * all of the members of the association would not have standing to sue in their own right since all of them were not property owners with previously assigned boat dock locations and deeds with language creating an express easement. The claim andthe relief required participation of individual members. Theassociation did not have standing to bring suit on behalf of itsmembers." (Emphasis added.)
In the case sub judice, appellants are contesting a forfeiture proceeding conducted pursuant to R.C. Chapter 2933. Few courts have considered cases involving the issue of standing and the assertion of ownership interests in seized property. In the sole Ohio case our research recovered touching upon the issue, Akron v. Carlson (Mar. 11, 1987), Summit App. No. 12771, unreported, 1987 WL 7932, the court considered a motion requesting the return of confiscated evidence. Judge Joyce George wrote:
"* * * R.C. 2933.41 permits the return of confiscatedevidence only to those persons who can demonstrate that theyhave the right to possession. Appellants' motion does not assertany basis upon which the trial court could ascertain who had theright of possession to the confiscated evidence; therefore, the trial court properly denied the motion. Although appellantsasserted a right of possession on behalf of VFW Airport Post 8975 and George's Vending Company, they failed to show their standingto apply to the trial court for the return of the property tothese other possible claimants. The trial court did not err in refusing to return the evidence upon appellants' motion * * *." (Emphasis added.) *Page 495
Judge George apparently rejected the notion that anyone other than the owner has standing to assert an ownership interest in contraband.
Also, in Warth v. Seldin (1975), 422 U.S. 490, 95 S.Ct. 2197,45 L.Ed.2d 343, the United States Supreme Court spoke to the relationship between associational standing and the nature of the relief sought. The court wrote:
"As noted above, to justify any relief the association must show that it has suffered harm, or that one or more of its members are injured. E.g., Sierra Club v. Morton, 405 U.S. 727 [92 S.Ct. 1361, 31 L.Ed.2d 636] (1972). But, apart from this,whether an association has standing to invoke the court'sremedial powers on behalf of its members depends in substantialmeasure on the nature of the relief sought. If in a proper casethe association seeks a declaration, injunction, or some otherform of prospective relief, it can reasonably be supposed thatthe remedy, if granted, will inure to the benefit of thosemembers of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind. E.g. National Motor Freight Assn. v. UnitedStates, 372 U.S. 246 [83 S.Ct. 688, 9 L.Ed.2d 709] (1963). * * *" (Emphasis added.)
See, also, Hunt v. Washington State Apple Advertising Comm. (1977), 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383, andState ex rel. Ohio Motorists Assn. v. Masten (1982), 8 Ohio App.3d 123, 8 OBR 179, 456 N.E.2d 567, where the court held that in an action in mandamus where the relator seeks to enforce a public right, an association had standing to maintain the suit in mandamus.
The case most closely on point with the case sub judice involved a cockfight in Iowa. In In re Property Seized fromErnie Edward Aronson (Iowa 1989), 440 N.W.2d 394, the trial court ordered the forfeiture of property seized at the site of the alleged cockfight. At the forfeiture hearing, the defendants did not testify and did not identify their interest in the seized property. Fifty-seven defendants appealed seeking the reversal of the forfeiture order. In affirming the trial court's order of forfeiture, the Iowa Supreme Court wrote:
"At the hearing on forfeiture, the state presented evidence to support the forfeiture claim. Defendants presented noevidence of their interest in any of the subject property. Instead they exercised their constitutional right under the Fifth Amendment not to testify. In United States v. FifteenThousand Five Hundred Dollars, 558 F.2d 1359 (9th Cir. 1977), the government sought a forfeiture of $15,500 from a safety deposit box allegedly used in connection with an illegal gambling business. Defendant exercised her Fifth Amendment right and never testified that she claimed any interest in the money. The court ignored defendant's claim of an illegal search and unlawful wiretap and ordered the money forfeited. *Page 496
"Where the underlying action is a civil forfeiture suit,however, none of the above bases for contesting the forfeitureis reached unless the threshold requirement of being a claimantis fulfilled. This can be done only if the person desiring todefend the action claims an ownership or possessory interest inthe property seized. It is not sufficient to have claimed merely an interest in the premises or area in which the contraband was found. * * * Again, in Baker v. United States, 722 F.2d 517 (9th Cir. 1983), the court rejected arguments put forth by defendants who lack standing. There, defendants sought damages for property forfeited by the drug enforcement administration. Fifth Amendment rights were exercised, defendants claiming they were thereby protected from having to allege a specific property interest, because of pending criminal investigations. In dismissing the case the court said:
"To have standing to contest a forfeiture, one must be a `claimant.' United States v. Fifteen Thousand Five HundredDollars * * *. `A "claimant" is one who claims to own the article or merchandise or to have an interest therein.' Id.;United States v. One 560 Foot Yacht Named Tahuna, 702 F.2d 1276,1279 (9th Cir. 1983).
"The plaintiffs are not `claimants' because they have allegedno specific property interest in the forfeited items. Theyassert that claiming ownership of the forfeited items mightincriminate them in pending criminal investigations for tax andwelfare violations. They contend that forcing them to choose between their privilege and their lawsuit makes assertion of the privilege `costly.' See, e.g., Campbell v. Gerrans,592 F.2d 1054, 1057 (9th Cir. 1979) (litigant should not suffer a penalty for assertion of fifth amendment privilege).
"We rejected this argument in Fifteen Thousand Five HundredDollars * * *. The appellant there invoked the fifth amendment when asked whether she owned the currency that the government wished to forfeit. We held that she had no standing to contest the forfeiture * * *."
The case at bar presents a similar scenario. Defendants have failed to prove their interest in the property to be forfeited as required by section 809.9. We hold that in this civil proceeding various claims by defendants of violation of their constitutional rights are moot in the face of their failure to have standing to contest the forfeiture. The district court's order on forfeiture is affirmed." (Emphasis added.)
I agree with the reasoning in the Iowa case. The OGBA members cannot anonymously hide behind the association and the Fifth Amendment to seek return of the contraband. *Page 497
III In the case sub judice, I submit that neither the Ohio Gamefowl Breeders Association ("OGBA") nor Phillip Fleming has standing to appeal the trial court's judgment.
First, the prerequisites to "associational standing" have not been satisfied. I readily acknowledge that associational standing is acceptable in many circumstances. Even in the absence of injury to itself, an association may have standing solely as the representative of its members. Warth, supra, citing National Motor Freight Assn. v. United States (1963),372 U.S. 246, 83 S.Ct. 688, 9 L.Ed.2d 709. An association may indeed have the capacity to assert a claim in a representative capacity on behalf of the association's members without joining individual members as parties. However, in the case at bar, appellants have not satisfied the requirements for standing.
I believe that in the case sub judice the third prong of the requirements for associational standing has not been satisfied. In the case at bar, the participation of the individual owners of the seized property in the proceeding is necessary. The nature of the claims and the relief sought require the individual participation of each injured party. One cannot say that the facts and arguments that could be asserted by one person claiming an ownership interest in the property would be identical to all the other owners of the seized property.3 The fact that individual members were reluctant to come forward and assert their ownership interest because of fear that the state would file additional criminal charges is not persuasive.
Second, the association did not assert an ownership interest in property and, therefore, is not a real party in interest or an aggrieved party. One not a party to the case and not attempting to intervene as a party during the lower court proceeding is without capacity to appeal. State ex rel.Cincinnati Post v. Hamilton Cty. Ct. of Common Pleas (1991),59 Ohio St.3d 103, 107, 570 N.E.2d 1101; State ex rel. Jones v.Wilson (1976), 48 Ohio St.2d 349, 2 O.O.3d 471, 358 N.E.2d 605; and In re Love, supra. The majority treated OGBA's participation at the forfeiture hearing as a motion to intervene pursuant to Civ.R. 24. However, the OGBA did not make a claim to the ownership or possession of the property. The association stated the property in question was owned by members of the association and the members did not want the chickens destroyed. Appellants made no formal motion to intervene and the trial court issued no order granting party status. On the facts presented in *Page 498 this case, I do not believe the association's participation in the proceeding merits the finding of intervenor status. Thus, appellants do not have standing. See Januzzi v. Hickman (1991),61 Ohio St.3d 40, 45, 572 N.E.2d 642, 646. In the instant case, the trial court permitted OGBA to proceed in the case on anamicus curiae basis.
Third, I believe the particular nature or subject matter of an action has a bearing on whether an association has standing to assert a claim. In the case at bar, the nature of the relief sought is not a declaration, injunction, or some other form of prospective relief. See Warth, supra. I cannot accept the proposition that an association can have standing to assert a property interest on behalf of members that own property which is the subject of a forfeiture proceeding. This is not the intended purpose of associational standing. In the case subjudice, the trial court determined the seized property was used in the furtherance of a criminal offense and, pursuant to R.C.2933.42, is contraband. I believe that in a forfeiture proceeding conducted pursuant to R.C. 2933.41 et seq., it is incumbent upon the actual owners of the seized property to come forward and assert their claims. See Akron v. Carlson, supra. In a forfeiture proceeding, owners of seized property should not be permitted to conceal themselves behind the veil of an association. Thus, the OGBA should not have standing in the forfeiture proceeding because of the nature of the action and the relief sought.
Fourth, I agree with the majority that appellant Fleming does not have standing. There is no evidence in the record that Fleming ever asserted an ownership interest in the seized property. Also, Fleming did not intervene in the action and there is nothing in the record that indicates counsel for OGBA represented Fleming during the proceeding. See Januzzi, supra.
IV The majority opinion cites Pennsylvania Gamefowl BreedersAssn. v. Commw. of Pennsylvania (Pa.Cmmw. 1987), 533 A.2d 838, as authority for holding that OGBA has standing in the instant action. In the Pennsylvania case, the association brought an action challenging the constitutionality of a statute prohibiting cockfighting. The court determined that the association had standing to initiate a claim for relief in the nature of a declaratory judgment. The court found the association's members could suffer from a direct, immediate and substantial injury because the statute in question directly affected the freedom of the members of the association to associate with members in organizations in other states where cockfighting is not prohibited. However, in my view this case is not persuasive in our analysis because in the Pennsylvania case the association sought relief in the nature of *Page 499 a declaratory judgment; conversely, in the case sub judice the association is not seeking a form of prospective relief. SeeWarth, supra. Also, the Pennsylvania case did not involve the forfeiture of contraband.
I further disagree with the idea that unless the state fully complies with the mandatory notice provision set forth in R.C.2933.43(C), the state is prohibited from raising the issue of a claimant's standing to contest a petition for the forfeiture of seized property. I believe the question of standing to assert a claim is always at issue. As I previously discussed I recognize that because the mandatory notification requirement was not satisfied, the proceeding was flawed. However, I do not believe we can disregard the question of standing.
Inasmuch as some owners of the seized property may not have received actual notice of the forfeiture proceeding, perhaps those owners could avail themselves to alternative remedies for recovery. I further recognize that because the individual owners may be subjected to the same perils of criminal prosecution that they apparently wished to avoid during the proceeding below, the owners of the property may, in all likelihood, be reluctant to individually assert their claims. Nevertheless, the issue of standing cannot be disregarded.
V Accordingly, based upon the foregoing I believe appellants do not have standing to appeal the trial court's judgment and we cannot consider the merits of this appeal. Therefore, I believe the appeal should be dismissed.
1 R.C. 2933.43 provides, in pertinent part, "* * * the petitioner * * * 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. Thepetitioner then shall give notice of the forfeiture proceedingsby personal service or by certified mail, return receipt requested, to any persons known, because of the conduct of the search, the making of inquiries, or otherwise, to have an ownership or security interest in the property, and shallpublish notice of the proceedings once each week for twoconsecutive weeks in a newspaper of general circulation in thecounty in which the seizure occurred. The notices shall bepersonally served, mailed, and first published at least fourweeks before the hearing. 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.)
2 In Dept. of Liquor Control v. Amvets Post 1315 (Mar. 15, 1991), Henry App. No. 7-90-1, unreported, 1991 WL 34905, the Third District Court of Appeals reviewed a proceeding that involved the seizure and forfeiture of slot machines, poker machines and dice mats seized during the search of Amvets Post 1315. In one of the assignments of error, appellants asserted the Henry County Common Pleas Court lacked jurisdiction to determine the matter because appellee failed to comply with the publication of notice of the forfeiture proceeding requirement pursuant to R.C. 2933.43(C). The court wrote:
"The public notice given by appellee deviated from the statutory dictates in several regards. First, rather than being published once each week for two consecutive weeks, the notice was published two consecutive days in one week. Furthermore, the publication was not made at least four weeks prior to the forfeiture hearing as required by R.C. 2933.43(C). While it is abundantly clear that the public notice in this case was deficient, we are not prepared to accept appellants' argument (particularly in light of the fact that each defendant was served with notice of the proceedings by certified mail) that these deficiencies deprived the trial court of the jurisdiction granted under R.C. 2933.43 to determine forfeiture actions."
Amvets Post 1315 is distinguishable from the case subjudice. First, in the case at bar appellee did not provide any notice by publication as mandated by R.C. 2933.43(C). Second, inAmvets Post 1315 it was established that all the owners of the property were provided notice of the forfeiture proceeding by certified mail. In the case at bar, there is nothing in the record that establishes that all persons who have an ownership interest in the seized property were notified of the forfeiture proceeding. The trial court stated that:
"* * * sufficient actual notice of the intended filing of the aforesaid application for disposition of forfeited property was made by Law Enforcement Officers and the media to potential claimants, as envisioned by Section 2933.41(B) R.C."
Thus, the trial court assumed that all owners of the property were either at the scene of the seizure or learned of the seizure through media coverage. This is an assumption that is not permitted by the statute or supported by the evidence adduced below.
3 For example, the Ohio General Assembly drew a distinction between the owner of property who establishes that he neither knew nor should have known that the property was used, or was likely to be used, in the commission of a crime, and the criminal whose acts converted the property into contraband. See R.C. 2933.43(C).