[Cite as Homrighausen v. Dover, 2024-Ohio-5454.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
RICHARD P. HOMRIGHAUSEN JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellant Hon. John W. Wise, J. Hon. Andrew J. King, J. -vs- Case No. 2024 AP 03 0012 CITY OF DOVER, OHIO, et al.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2022 CV 04 0188
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 19, 2024
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
JONATHAN J. DOWNES ROBIN M. WILSON DREW C. PIERSALL DOLORES P. GARCIA ZASHIN AND RICH CO., LPA HALDEN R. SCHWALLIE 17 South High Street UB GREENSFELDER LLP Suite 900 Skylight Office Tower Columbus, Ohio 43215 1660 West 2nd Street, Suite 1100 Cleveland, Ohio 4113-1406 Tuscarawas County, Case No. 2024 AP 03 0012 2
Wise, J.
{¶1} Plaintiff-Appellant Richard P. Homrighausen appeals the October 6, 2023,
Judgment Entry entered by the Tuscarawas County Court of Common Pleas, granting
Summary Judgment on Defendant-Appellee City of Dover’s counterclaim for
reimbursement for payments made to Appellant for officiating weddings during his tenure
as Mayor for the City of Dover.
STATEMENT OF THE FACTS AND CASE
{¶2} The relevant facts and procedural history are as follows:
{¶3} Appellant Richard P. Homrighausen is the former Mayor of the City of Dover
(Appellee), a municipal corporation located in Tuscarawas County, Ohio.
{¶4} On March 11, 2022, a Tuscarawas County grand jury indicted Appellant on
the following felony charges in Case No. 2022 CR 03 0072: One count of Theft in Office
(R.C. § 2921.41(A)(1) and (B)); One count of Having an Unlawful Interest in a Public
Contract (R.C. § 2921.42(A)(1) and (E)); Six counts of Filing Incomplete, False and
Fraudulent Tax Returns. (R.C. §5747.19); and four misdemeanor charges including: One
count of Soliciting Improper Compensation (R.C. § 2921.43(A)(1) and (D)); Two counts
of Dereliction of Duty (R.C. § 2921.44(E) and (F)); and one count of Representation by
Public Official or Employee (R.C. § 102.03 and R.C. §102.99).
{¶5} The charges arose after an investigation uncovered irregularities with fees
paid to Appellant, the then Mayor, to perform weddings. In said case, the state of Ohio
asserted Appellant used City resources and charged a fee for the weddings, but pocketed
the fees for himself instead of turning them over to the City treasury. Tuscarawas County, Case No. 2024 AP 03 0012 3
{¶6} On May 4, 2022, the Special Commission issued its Notice of Final
Determination suspending Appellant from office pursuant to R.C. §3.16(C)(3)(b) and (4).
{¶7} From May 5, 2022, through November 16, 2022, the period from Appellant's
suspension up to his conviction and disqualification from public office, the City paid
compensation and benefits to Appellant in the amount of $77,802.06.
{¶8} On November 17, 2022, a jury found Appellant guilty on the felony charge
of Theft in Office, in violation of R.C. §2921.41(A)(1), and five misdemeanor charges: four
counts of Soliciting Improper Compensation, in violation of R.C. §2921.43; and one count
of Dereliction of Duty, in violation of R.C. § 2921.44.
{¶9} On January 19, 2023, the trial court sentenced him in his criminal case, and
in determining an "appropriate sentence," the trial court considered among other matters
the fact that "the offender held a public office and the offense was related to that office."
{¶10} The instant case began when Appellant filed a Declaratory Action
Complaint, claiming the City of Dover entered into an improper settlement agreement with
three terminated employees without approval from the City's appointing authority and
admitted liability on Appellant's behalf in that settlement agreement.
{¶11} On May 23, 2023, the City asserted two counterclaims against Appellant.
Its first counterclaim sought repayment for compensation collected by Appellant during a
suspension after he was subsequently removed from office, pursuant to R.C. §3.16. Its
second counterclaim sought, under R.C. §9.39, recoupment of fees allegedly collected
by Appellant for solemnizing marriages while he served as Mayor of the City of Dover.
{¶12} On June 9, 2023, each party filed motions for summary judgment on their
claims. Tuscarawas County, Case No. 2024 AP 03 0012 4
{¶13} On July 7, 2023. Appellant filed a second motion for summary judgment on
Appellee's second counterclaim.
{¶14} By Judgment Entry filed October 6, 2023, the trial court denied both of
Appellant's motions for summary judgment, dismissed Appellant’s Complaint for
Declaratory Judgment, and granted Appellee's motion for summary judgment. The trial
court found that Appellee was entitled to reimbursement for any wedding fees collected
by Appellant over the course of his tenure as Mayor but found that a genuine issue of fact
remained as to the amount of fees collected by Appellant. The court set a damages
hearing to determine the amount of wedding fees collected by Appellant.
{¶15} On November 2, 2023, the damages hearing was held. At said hearing the
trial court heard from four witnesses: the former Mayor’s Executive Assistant Eva
Newsome, the Mayor’s former Executive Assistant Vicki Vorhees, the City’s Auditor
Nicole Stoldt and the former Treasurer.
{¶16} On February 23, 2024, the trial court rendered its final judgment wherein it
found that Appellant officiated over 1,000 weddings under the authority granted to him as
Mayor of the City and determined that Appellant received $28,355.00 in wedding fees,
and ordered Appellant to reimburse the City for those fees.
{¶17} Appellant now appeals, assigning the following assignments of error:
ASSIGNMENTS OF ERROR
{¶18} “I. THE COMMON PLEAS COURT ERRED IN FINDING THAT THE CITY
OF DOVER WAS ENTITLED TO SUMMARY JUDGMENT ON ITS SECOND
COUNTERCLAIM AGAINST APPELLANT. Tuscarawas County, Case No. 2024 AP 03 0012 5
{¶19} “II. THE COMMON PLEAS COURT ERRED IN FINDING THAT THE CITY
OF DOVER ESTABLISHED DAMAGES FOR THE RECOUPMENT OF WEDDING FEES
IN THE AMOUNT OF $28,355.00.”
I.
{¶20} In his first assignment of error, Appellant argues the trial court erred in
granting summary judgment in favor of Appellees. We disagree.
Standard of Review
{¶21} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must refer to Civ.R.
56(C) which provides in pertinent part:
Summary Judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. No evidence
or stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable minds
can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being
entitled to have the evidence or stipulation construed most strongly in the
party’s favor. Tuscarawas County, Case No. 2024 AP 03 0012 6
{¶22} Pursuant to the above rule, a trial court may not enter summary judgment if
it appears a material fact is genuinely disputed. The party moving for summary judgment
bears the initial burden of informing the trial court of the basis for its motion and identifying
those portions of the record demonstrating the absence of a genuine issue of material
fact. The moving party may not make a conclusory assertion the non-moving party has
no evidence to prove its case. The moving party must specifically point to some evidence
which demonstrates the moving party cannot support its claim. If the moving party
satisfies this requirement, the burden shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 1997-
Ohio-259, citing Dresher v. Burt, 1996-Ohio-107.
{¶23} The City asserted a counterclaim against Appellant for reimbursement of
wedding fees pursuant to R.C. §9.39, which provides, in relevant part:
All public officials are liable for all public money received or collected
by them or by their subordinates under color of office. All money received
or collected by a public official under color of office and not otherwise paid
out according to law shall be paid into the treasury of the public office with
which the public official is connected …
{¶24} Initially, Appellant argues that while the City argued that it was entitled to
the money collected by Appellant for conducting wedding ceremonies under color of
office, it failed to show that Appellant collected the wedding fees under color of office.
{¶25} Appellant herein argues that he did not have a duty to deposit fees for
weddings with the city treasurer because there is no express provision under the Ohio
Revised Code which required him to do so. Tuscarawas County, Case No. 2024 AP 03 0012 7
{¶26} When considering a similar argument concerning R.C. §733.40 in
Appellant’s direct appeal from his criminal convictions for Theft in Office, Soliciting
Improper Compensation, and Dereliction of Duty, this Court held:
That section states in pertinent part:
* * * *[A]ll fines, forfeitures, and costs in ordinance cases and all fees
that are collected by the mayor, that in any manner come into the
mayor's hands, or that are due the mayor or a marshal, chief of police, or
other officer of the municipal corporation, any other fees and expenses that
have been advanced out of the treasury of the municipal corporation, and
all money received by the mayor for the use of the municipal corporation
shall be paid by the mayor into the treasury of the municipal
corporation on the first Monday of each month. * * * *. (Emphasis
added).
This argument is misplaced because regardless of terminology, the
uncontroverted evidence established appellant solicited and accepted a
“fee” or “gratuity” or “payment” or any other term describing an amount of
money charged by appellant in his capacity as mayor of the City of Dover
to perform weddings, and appellant kept those fees or gratuities or
payments, i.e. the money, for himself.
{¶27} State v. Homrighausen, 5th Dist. Tuscarawas No. 2023AP020008, 2024-
Ohio-6, ¶¶ 36-38
{¶28} For the same reasons, we are unpersuaded by Appellant’s arguments that
his receipt of fees for performing wedding ceremonies as Mayor were not done under Tuscarawas County, Case No. 2024 AP 03 0012 8
color of office. Appellant’s only authority to perform the wedding ceremonies came solely
by virtue of his position as Mayor, through R.C. §3101.08. He used his office and office
staff to schedule and help perform these weddings. He performed the ceremonies as the
Mayor of Dover. He therefore was acting “under color of office” when he performed the
ceremonies, and any fees he charged and collected for such belonged to the City and
should have been paid to the treasury of his public office.
{¶29} In support of its motion for summary judgment on its counterclaim, Appellee
provided testimony in the form of an Affidavit by Eva Newsome, Appellant’s Executive
Assistant, who stated that she assisted Appellant with the officiating of weddings by filling
out he paperwork, including the vows, collecting payments and providing receipts and
scheduling. (Affidavit at ¶ 4). She stated that she performed these tasks during business
hours on her work computer. Id. She stated that Appellant conducted weddings during
business hours and the payments were paid directly to Appellant. Id. She further testified
that Appellant required that payments be made to him in cash or checks made out to him
personally. Id.
{¶30} Appellant provided no evidence to contradict Ms. Newsom’s Affidavit
testimony to demonstrate that an issue of material fact existed with regard to this issue.
{¶31} In his own deposition, when questioned about receiving and retaining
payment for performing wedding ceremonies, Appellant invoked the Fifth Amendment:
Q: When you performed weddings, did you personally receive
payment for performing those weddings?
A: On the advice of my attorney, I invoke my Fifth Amendment right. Tuscarawas County, Case No. 2024 AP 03 0012 9
Q: And when you received payment for performing weddings, did you
provide the moneys received to the City?
A: On the advice of my attorney, I invoke my Fifth Amendment right.
Q: Did you ever report the moneys that you received for performing
weddings to the County - excuse me - to the City auditor?
A: On the advice of my attorney, I invoke my Fifth Amendment right.
Q: When you received money for performing weddings, did you
personally retain that money?
A: On the advice of my attorney, I invoke my Fifth Amendment right.
{¶32} (Homrighausen Depo. at 81, 85, 87).
{¶33} Based on the foregoing, we find that Appellee was entitled to summary
judgment on its counterclaim.
{¶34} Appellant’s first assignment of error is overruled.
II.
{¶35} In their second assignment of error, Appellant argues the trial court erred in
finding that the City of Dover established damages for the recoupment of wedding fees in
the amount of $28,355.00. We disagree.
{¶36} A reviewing court will not reverse a trial court's decision regarding its
determination of damages absent an abuse of discretion. Darfus v. Clark, 2013-Ohio-563,
¶ 54 (5th Dist.). A reviewing court will not reverse a trial court's decision regarding its
determination of damages absent an abuse of discretion. In order to find an abuse of
discretion, we must determine the trial court's decision was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Tuscarawas County, Case No. 2024 AP 03 0012 10
{¶37} “In conducting a hearing on damages, the trial court has broad discretion in
assessing the weight and credibility of the evidence of damages.” Skiver v. Wilson, 2018-
Ohio-3795, ¶ 18 (8th Dist.).
{¶38} At the damages hearing in this matter, Ms. Newsome, the Mayor’s
Executive Assistant, testified that for as long as she could recall, the wedding fee
schedule was displayed on a bulletin board in the Mayor's office listing the costs for the
marriage ceremonies based on the time and location of the wedding. (T. at 16-17) Costs
for the Mayor to officiate weddings varied depending on whether it was during the City's
normal business hours, after business hours or on a weekend, at the City offices or at a
different location. Id. She testified that when Appellant officiated weddings during
business hours as the Mayor, a public official, he was assisted by City employees.
{¶39} Ms. Newsome testified that upon receiving a request for a wedding to be
performed, she would prepare all paperwork, arrange for the Mayor to conduct the
wedding, calculate and advise the couple as to the fees, prepare the vows that the Mayor
used, and prepare the wedding license. (T. at 20). She further testified that for the
wedding procedure, the couple had to pay by cash or by check made payable to Richard
Homrighausen. (T. at 21). Appellant directly accepted all payments for the weddings, and
the parties to be married paid Appellant either by checks made out to Appellant (not the
City) or in cash. On at least one occasion, Appellant instructed a City of Dover employee
to return a check made out to the "City of Dover" and request that they submit a check
made out to Appellant personally. (T. at 16-25.)
{¶40} Ms. Newsome also testified that anyone who requested wedding services
would call City Hall to request the Mayor's officiating services: Tuscarawas County, Case No. 2024 AP 03 0012 11
Q: Going back, when people would call the office – when people
would call and you would provide this information over the phone; what
number would they call?
A: Three-Three-Zero-Three-Four-Three-Six-Seven-Two-Six
Q: And what number does that go to?
A: That's the number to City Hall.
Q: Is that the official City Hall one?
A: Yes, it is.
{¶41} (T. at 97).
{¶42} Ms. Newsome further testified that she was custodian of the records in the
Mayor's office, including the records that included the wedding receipts and files for each
wedding that the Mayor performed. (T. at 24.) She testified that she personally reviewed
those documents and prepared the spreadsheets for the wedding fees that were
presented at trial. (T. at 35.)
{¶43} Ms. Newsome explained:
I started recording [the wedding fees] because I was concerned that
the Mayor had asked me to remove that wedding fee schedule in the
presence of State Auditors and I was fearful that I didn't want to do
something to get into trouble so I just wanted to keep a record of what
weddings were being done and how that was being processed.
{¶44} (T. at 35-36).
{¶45} Ms. Newsome, as custodian of the records, also testified that she personally
prepared spreadsheets of wedding receipts for each year from 1996 until she was hired Tuscarawas County, Case No. 2024 AP 03 0012 12
in 2014, in addition to the spreadsheets she had kept from 2014 forward. For each entry,
she indicated whether or not there was a receipt to reflect payment. (T. at 37-44). When
asked at the hearing if these records were under her custody and control, Newsome
answered, yes.
Q: How did you go about locating the relevant receipts?
A: There in the receipt books that are kept in the office that are
documents that I manage.
{¶46} (T. at 52).
{¶47} The original receipt books were also entered into evidence.
{¶48} After hearing arguments from both parties, the trial court admitted the
spreadsheets reflecting wedding fees received from 1996 forward, finding that a
foundation had been "laid to have it admitted" but that "ultimately, the Court would "give
it the weight that I think it deserves at a later time." (T. at 49, quoting the Court).
{¶49} In making its award of damages, the trial court found:
In this matter, the City has proven by a preponderance of the
evidence that Homrighausen received $28,355.00 for weddings he
performed under color of office during the time he served as the City’s
mayor. This is the amount established by the receipts in Exhibit A that
clearly indicate on their face that the requested amount was in fact received.
Additionally, the Court finds that the City has proven by a preponderance of
the evidence that none of this money was paid into the City’s accounts as
required by R.C. 9.39 Tuscarawas County, Case No. 2024 AP 03 0012 13
However, the Court concludes that, without testimony based on
actual knowledge, it is too speculative to determine the amount of money
received by Homrighausen that is not evidenced by corresponding receipts.
Therefore, the City has not met its burden of proof regarding its request for
reimbursement of undocumented fees in the amount alleged by the City.
Any amount awarded for these fees would be the result of conjecture and
improper speculation
{¶50} (Oct. 6, 2023, JE at 12).
{¶51} The trial court considered the evidence and found that Appellee had shown
by a preponderance of the evidence that Appellant had received $28,355.00 for
performing weddings as Mayor, and that he failed to pay said fees into the City treasury.
In so finding, the trial court set forth a detailed review of the wedding fee receipts
presented at the damages hearing.
{¶52} Upon review, based on the evidence presented to the trial court and the
record before us, we do not find the trial court’s determination of damages to be
unreasonable, arbitrary, or unconscionable. Tuscarawas County, Case No. 2024 AP 03 0012 14
{¶53} Appellant’s second assignment of error is overruled.
{¶54} For the foregoing reasons, the judgment of the Court of Common Pleas of
Tuscarawas County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., concurs.
King, J., dissents.
JWW/kw 1104 Tuscarawas County, Case No. 2024 AP 03 0012 15
King, J. dissents,
{¶ 55} The City of Dover argues that it is entitled to recover the monies the former
mayor received by conducting marriage ceremonies. The City’s challenge rests on two
arguments.
{¶ 56} The City first argues that it has legal title to monies the mayor received
because a literal reading of the statute supports that conclusion. It is my view the City had
no legal claim to the monies the mayor received, and that those monies are more
appropriately considered a gratuity received for performing marriage services. Because
my colleagues accept the invitation to read the statute literally, I dissent.
{¶ 57} I also feel compelled to write separately to address the City's additional
argument, although it had no significance in Judge Wise's opinion for the court. The City's
related argument is that R.C. 9.39 would still apply because it should be broadly construed
as an anti-fraud provision. This construction is inconsistent with other provisions of the
Revised Code and improperly usurps the prosecutor's role.
{¶ 58} The purpose of R.C. 9.39 is to make the City whole—not provide it with
proceeds from criminal conduct. The power to force criminal restitution to victims or
disgorge criminal proceeds from felonies rests solely in the office of the prosecuting
attorney. The former mayor was convicted of soliciting improper compensation and
arguably the gratuities he received would be subject to forfeiture under R.C. Ch. 2981. I
generally agree with my colleagues to the extent that the facts here may warrant forfeiture,
but I do not find the City of Dover is empowered to achieve that.
{¶ 59} The City of Dover claims that its former mayor, Richard Homrighausen,
owes it thousands of dollars in fees he collected for performing marriage ceremonies. His Tuscarawas County, Case No. 2024 AP 03 0012 16
authority to solemnize marriages attaches to his office as mayor through R.C. 3101.08.
The City reasons since this authority accrues to him by office of mayor, anytime he
marries a couple and receives any compensation he is required to turn that sum over to
the City under R.C. 9.39. I disagree.
{¶ 60} This is not the first time this court has been asked to review the mayor's
conduct with regard to solemnizing weddings and his collection of fees. In the criminal
appeal, the state argued because he failed to turn those fees over to the City under R.C.
733.40, he committed theft in office. State v. Homrighausen, 2024-Ohio-6 (5th Dist.). I
disagreed with the court's conclusion to affirm the theft in office convictions in that matter
because I concluded the City was not the owner of those fees. Id. at ¶ 83. This conclusion
is bolstered by the natural implication from statutes cross-referenced in R.C. 3101.08,
which require judges—but not mayors—to deposit those fees in the treasury.
{¶ 61} Simply put, if the City never had a legal claim or title to those fees, then
there was no way for it to have been illegally deprived of those funds. Here, as under R.C.
2921.41(A)(1), the lack of a legal interest in those fees defeats the City's claims and thus
summary judgment in its favor was improper.
{¶ 62} The City's argument that "any monies collected" by the former mayor—no
matter for what reason—belongs to it does appeal to a literal reading of R.C. 9.89. While
we must abide by the text, we should not pursue literalism as a proper tool of
understanding the text. In rejecting a literal or strict constructionist approach to
interpreting statutes, Justice Scalia remarked such an approach was "a degraded form of
textualism that brings the whole philosophy into disrepute. I am not a strict constructionist,
and no one ought to be . . . ." Antonin Scalia, Common-Law Courts in a Civil-Law System: Tuscarawas County, Case No. 2024 AP 03 0012 17
The Role of United States Federal Courts in Interpreting the Constitution and Laws, A
Matter of Interpretation 3, 23 (2018). Instead, Justice Scalia said a statue should be
interpreted reasonably. Id. He goes on to illustrate his point using Smith v. United States,
508 U.S. 223 (1993), where he dissented from the opinion of the Court that the defendant
"used" a firearm during his crime. Id.
{¶ 63} Here, I reject the City's invitation to take a literalist approach to construing
R.C. 9.89 and thus depart from my colleagues. Our task is to consider the text and the
context that shapes its meaning. Crookston v. Lykins, 2024-Ohio-5131, ¶ 16. In my
dissent to this court's opinion affirming the theft in office conviction, I discussed how R.C.
733.40 was narrowed by R.C. 733.30 and R.C. 3101.08. Homrighausen, 2024-Ohio-6, at
¶ 71-75. Moreover, I disagreed that the use of term "fees" in R.C. 733.40 could be
expanded by the concept of apparent authority. Id. at ¶ 76-78. That analysis is relevant
to R.C. 9.89, as it helps give us context to understand its meaning. Moreover, an
additional rule of construction here is that a more specific statute generally controls over
the more general. State v. Volpe, 38 Ohio St.3d 191, 193 (1988). Thus, I do not think we
should read R.C. 9.89 in a vulgar, literal sense to avoid the significance of other statutes
and read "any" to mean anything conceivable, no matter how attenuated the receipt of
money is from legal interest of the political subdivision.
{¶ 64} I also conclude that the proper interpretation of "fees" in R.C. 733.40 and
"monies collected" in R.C. 9.89 requires that the public entity have claim to the title of the
funds it seeks. For example, when the mayor is collecting fees for permits or applications
or receiving payments for municipal services, those are plainly funds in which the city has
a legal interest. Not only would mayors be responsible under either statute for the failure Tuscarawas County, Case No. 2024 AP 03 0012 18
to turnover these fees, but that conduct would likely also be viewed as a dereliction of
duty, which would give rise to sanctions.
{¶ 65} But I do not think either statutory term fairly encompasses gratuities and
gifts a mayor may receive (whether properly or improperly) for solemnizing marriages.
First, there is no situation where a mayor discharging his authority to solemnize marriages
furthers the interest of the municipality. This power belongs to the mayor uniquely and
without regard to whether he is acting as an agent for the municipality. Moreover, this
power may be exercised (or not) with absolute discretion by the mayor. In fact, the mayor
may elect to never exercise this power, and any failure to do so would not be a dereliction
of duty. Thus, unlike the examples given above there is no agency relationship between
the mayor and the city. Without that nexus, the city has no claim to the gratuities the
mayor collected, even if the act is tied to a statutory power of that office.
{¶ 66} The City's argument to avoid any such limitation is to argue that R.C. 9.89
operates as an anti-fraud statute permitting it to sue and recover the proceeds of the
former mayor's criminal conduct. Not only is this not the case, but a further examination
demonstrates that this construction would run further afoul of the prosecuting attorney's
authority.
{¶ 67} When a criminally convicted person is in possession of criminal proceeds,
the prosecuting attorney can bring a forfeiture action under R.C. 2981.04. 1 And in order
to obtain an order of forfeiture, the state must prove to the fact finder by clear and
convincing evidence that the property is subject to forfeiture. R.C. 2981.04(B). Neither
1In this case restitution to the City of Dover was ordered as part of the criminal judgment
of conviction. There may be an additional question of whether such an order impacts a public office's claim to funds under R.C. 9.89, but that is not before us. Tuscarawas County, Case No. 2024 AP 03 0012 19
that burden of proof nor the right to a jury trial is included in R.C. 9.89. Thus, reading R.C.
9.89 as an alternative method of forfeiture not only circumvents the prosecuting attorney's
sole power to bring the claim but also important procedural safeguards for the accused
person. Furthermore, R.C. 2981.04 contains important safeguards for third parties who
may have an interest in the property that are absent from R.C. 9.89. Finally, R.C. 2927.21
appears to criminalize the City of Dover's future receipt of the criminal proceeds from the
theft in office conviction. In considering these all together, I cannot agree that R.C. 9.89
is an anti-fraud provision that allows a political subdivision to pursue and receive proceeds
of a criminal offense.
{¶ 68} Although the issue of whether R.C. 2981.04 necessarily narrows R.C. 9.89
is not squarely before us, I think this apparent conflict is yet another reason to decline the
City of Dover's invitation to maximally construe the scope of R.C. 9.89. For this and the
other reasons given, I believe R.C. 9.89 requires a narrower construction than that my
colleagues and therefore, I dissent.