State ex rel. Celebrezze v. Hughes

569 N.E.2d 1059, 58 Ohio St. 3d 273, 1991 Ohio LEXIS 918
CourtOhio Supreme Court
DecidedApril 10, 1991
DocketNo. 89-2219
StatusPublished
Cited by12 cases

This text of 569 N.E.2d 1059 (State ex rel. Celebrezze v. Hughes) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Celebrezze v. Hughes, 569 N.E.2d 1059, 58 Ohio St. 3d 273, 1991 Ohio LEXIS 918 (Ohio 1991).

Opinions

Holmes, J.

The single issue presented in this appeal is whether statements and evidence obtained from the appellee pursuant to a grant of “use” immunity in the context of a federal criminal prosecution were properly utilized by the Ohio Attorney General in a penalty assessment under R.C. 1345.07(D) and 4549.48(B). For the following reasons, we hold that such admissions were properly utilized, and reverse the judgment of the court of appeals in this regard.

The Fifth Amendment to the United States Constitution protects an individual against penalties imposed as part of a criminal punishment. As the Supreme Court noted in Hale v. Henkel (1906), 201 U.S. 43, 67: “The interdiction of the Fifth Amendment operates only where a witness is asked to incriminate himself — in other words, to give testimony which may possibly expose him to a criminal charge.” (Emphasis added.)

The privilege does not extend to penalties of a noncriminal nature. United States v. Apfelbaum (1980), 445 U.S. 115, 124-125. Fear of public disgrace or personal danger of civil liability is not an adequate constitutional or legal ground to successfully invoke the privilege and protection of immunity. Therefore, only criminal liability need be immunized. Ullmann v. United States (1956), 350 U.S. 422; Piemonte v. United States (1961), 367 U.S. 556.

Accordingly, to successfully invoke the privilege and protection of his federal “use” immunity in this case, appellee must demonstrate that R.C. 1345.07(D)1 and 4549.48(B)2 authorize criminal rather than civil penalties.

[275]*275In United States v. Ward (1980), 448 U.S. 242, the United States Supreme Court examined whether a proceeding for the assessment of a civil penalty under the Federal Water Pollution Control Act was criminal within the ambit of the Fifth Amendment’s guarantee against compulsory self-incrimination. The court in Ward articulated a two-level test for determining whether a penalty is civil or criminal, noting that the issue is one of statutory construction:

“First, we have set out to determine whether * * * [the legislature], in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or another. * * * Second, where * * * [the legislature] has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention. * * *” (Citations omitted.) Id. at 248-249.

In making the inquiry required by the second prong of Ward, “ ‘only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground.’ ” Id. at 249 (quoting Flemming v. Nestor [1960], 363 U.S. 603, 617). The court also noted, at 249, that the seven considerations listed in Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 168-169, while neither exhaustive nor dispositive, could be instructive in determining a statute’s effect and purpose.3

In analyzing the statutory provisions in this case, we observe that Ohio’s Consumer Sales Practices Act is a remedial law designed to provide various civil remedies to aggrieved consumers and must be liberally construed pursuant to R.C. 1.11. Einhorn v. Ford Motor Co. (1990), 48 Ohio St. 3d 27, 548 N.E. 2d 933; Celebrezze v. Hughes (1985), 18 Ohio St. 3d 71, 18 OBR 102, 479 N.E. 2d 886. The General Assembly has codified these civil remedies at R.C. 1345.07(D). Pur[276]*276suant to this section, “* * * the attorney general may request and the court may impose a civil penalty of not more than twenty-five thousand dollars against the supplier. The civil penalties shall be paid as provided in division (G) of this section.” (Emphasis added.)

Furthermore, civil penalties are also expressly provided for by the Odometer Rollback and Disclosure Act. R.C. 4549.41 et seq. Pursuant to R.C. 4549.48(B):

“In addition to the remedies otherwise provided by this section, the attorney general may request and the court shall impose a civil penalty of not less than one thousand nor more than two thousand dollars for each violation. * * * [T]he maximum civil penalty shall not exceed one hundred thousand dollars for any related series of violations by a person. Civil penalties ordered pursuant to this division shall be paid as follows: one-fourth of the amount to the treasurer of the county in which the action is brought; three-fourths to the consumer protection enforcement fund created by section 1345.51 of the Revised Code.” (Emphasis added.)
“Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion for resorting to rules of statutory interpretation. An unambiguous statute is to be applied, not interpreted.” Sears v. Weimer (1944), 143 Ohio St. 312, 28 O.O. 270, 55 N.E. 2d 413, paragraph five of the syllabus, quoted with approval in State v. American Dynamic Agency (1982), 70 Ohio St. 2d 41, 45, 24 O.O. 3d 90, 92, 434 N.E. 2d 735, 737; State, ex rel. Brown, v. Dayton Malleable (1982), 1 Ohio St. 3d 151, 155, 1 OBR 185, 188, 438 N.E. 2d 120, 123.

The statutory language in this case is clear and unambiguous. The General Assembly intended in R.C. 1345.07(D) and 4549.48(B) to impose civil penalties and to allow the penalties to be imposed without regard to the procedural protections and restrictions available in criminal prosecutions. This intent is evidenced by the fact that the authorized sanction is labeled a “civil penalty” and is remedial in purpose and effect.

However, even where the legislature has clearly expressed an intention to establish a civil penalty, a challenger may show that the purpose and effect of the statute are punitive and negate the legislature’s classification. United States v. One Assortment of 89 Firearms (1984), 465 U.S. 354, 365, citing United States v. Ward (1980), 448 U.S. 242, 248-249.

Recently in United States v. Halper (1989), 490 U.S. 435, the United States Supreme Court considered when a civil penalty might be deemed “punishment” for double jeopardy purposes. The specific question addressed by the Halper court was “whether a civil sanction, in application, may be so divorced from any remedial goal that it constitutes ‘punishment’ for the purpose of double jeopardy analysis.” Id. at 443. The

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Bluebook (online)
569 N.E.2d 1059, 58 Ohio St. 3d 273, 1991 Ohio LEXIS 918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-celebrezze-v-hughes-ohio-1991.