The issue certified for our review is: "Whether the notice requirements set forth in [former] R.C. 2933.43(C) are mandatory or whether substantial compliance with the notice requirements is all that is required to vest the trial court with jurisdiction to proceed where the defendant has actual notice." Because the language of R.C. 2933.43(C) is mandatory, strict compliance with the notice and publication provisions contained therein is required.
In construing a forfeiture statute the court must begin with a fundamental premise: Forfeitures are not favored by the law. The law requires that we favor individual property rights when interpreting forfeiture statutes. To that end, "statutes imposing restrictions upon the use of private property, in derogation of private property rights, must be strictly construed." State v. Lilliock (1982), 70 Ohio St.2d 23, 26, 24 O.O.3d 64, 65, 434 N.E.2d 723, 725.
The language of former R.C. 2933.43(C) is clear and unequivocal: the petitioner seeking forfeiture "shall give notice of the forfeiture proceedings by certified mail, * * * and shall publish notice of the proceedings once each week for two consecutive weeks in a newspaper of general circulation in the county in which the seizure occurred. The notices shall be mailed and first published at least four weeks before the hearing." (Emphasis added.)
It is axiomatic that when it is used in a statute, the word "shall" denotes that compliance with the commands of that statute is mandatory. The rule has been stated frequently and clearly: "In statutory construction, the word `may' shall be construed as permissive and the word `shall' shall be construed as mandatory unless there appears a clear and unequivocal legislative intent that they receive a construction other than their ordinary usage." Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834,
There is not even a remote indication, let alone "clear and unequivocal legislative intent," that the General Assembly considers the procedures set forth in R.C. 2933.43(C) to be permissive guidelines rather than mandatory instructions. Quite the contrary, the General Assembly chose mandatory language to assure that due process would be afforded in all cases in which the state seeks forfeiture. The General Assembly itself provided detailed safeguards in R.C. 2933.43(C), including the requirements that diligent inquiry regarding ownership of the seized property be undertaken and that specific notice requirements and time limits be followed. It is not this court's prerogative to second-guess the General Assembly's legislative policy choices.
Concurring in State v. Casalicchio (1991), 58 Ohio St.3d 178, 183, 569 N.E.2d 916, 921, Justice Douglas reflected on the language used by the General Assembly in R.C. 2933.43(C): "[T]he forfeiture statute is strong, but needed, medicine. Because of the endless possibilities of how the statute can be used by law enforcement agencies, the General Assembly obviously meant that certain procedural safeguards be followed. If those time-limit safeguards are not followed, then, said the legislature, forfeiture may not take place. We should enforce, in this regard, the will of the legislative body." Id. at 184, 569 N.E.2d at 922.
The department argues, in effect, that substantial compliance with the notice and publication requirements of R.C. 2933.43(C) adequately protected the lodge's due process rights, under the facts and circumstances of this case. The department misunderstands our role in reviewing the adequacy of due process protection. It is true that our inquiry is not limited to superficially
If the clear language of the statute is not sufficient to establish that it is mandatory, the actions of the General Assembly in amending R.C. 2933.43 provide additional support. Under former R.C. 2933.43(C), the law applicable here, law enforcement officials were required to provide notice of the forfeiture hearing by publication at least four weeks prior to the hearing. The hearing, in turn, was to be held no later than thirty days after the "conviction, or the admission or adjudication of the violation." This left the state only two days to file its petition and publish notice.
However, in 1990 the General Assembly amended R.C. 2933.43, in part, by increasing the amount of time before a hearing had to be held from thirty to forty-five days—which gives the state fifteen additional days to publish notice of the hearing. 143 Ohio Laws, Part I, 1457. This amendment addressed law enforcement's concern that it might be difficult to comply with the mandatory language of the statute. Moreover, it clearly reinforces the General Assembly's intent that the state must strictly comply with the procedural requirements of R.C. 2933.43. If the General Assembly was content to permit the statute to be directory rather than mandatory, it would not have seen the need to increase the state's time to comply with its provisions.
The broad definition of "contraband" contained in R.C. 2901.01(M) reinforces the need for strict compliance with the notice and publication requirements of R.C. 2933.43(C). R.C. 2933.42(A) provides that it is illegal to possess "contraband," as defined in R.C. 2901.01(M). R.C. 2933.42(B) makes clear that
The term "contraband" now encompasses many different types of property. At one extreme is property which by its very nature is contraband, such as illegal narcotics (R.C. 2901.01[M]); property of this type is summarily forfeited when seized. At the other extreme is property which may have only a minimal relationship to the illegal act committed, such as a motor vehicle involved in an alleged drug deal (R.C. 2901.01[M]). Strenuous due process protections must be afforded in order to avoid unfair forfeitures where the property's status as contraband is unclear. As the connection between the illegal act and the alleged contraband associated with it becomes increasingly tenuous, the necessity for due process protection becomes increasingly important, and the observance of procedural requirements may not be summarily dispensed with. Strict compliance with the notice and publication requirements of R.C. 2933.43(C) is necessary to deal with the broad spectrum of property which is subject to forfeiture. Otherwise, law enforcement and the courts would have to engage in a case-by-case analysis to determine what measure of compliance is adequate.
Ironically, while the department's position is aimed at facilitating its ability to obtain forfeitures, in the long run it would in fact burden the justice system. Creating a case-by-case standard would place an unreasonable burden on both law enforcement agencies seeking forfeiture and courts ruling on forfeiture petitions. These agencies and courts would have to decide what level of compliance with the requirements of R.C. 2933.43(C) would satisfy due process in each and every case. At least substantial compliance would have to be found in those cases in which strict compliance is not necessary. This would create a two-tiered analysis: (1) the first tier would require the law enforcement agency and the courts to decide whether strict compliance or substantial compliance is enough to satisfy due process; and (2) if substantial compliance was sufficient, then the second tier would require determination of what constitutes substantial compliance under the particular facts and circumstances of each case.
Because we hold that strict compliance with the notice and publication requirements of former R.C. 2933.43(C) is mandatory, we need not address the lodge's other propositions of law. The judgment of the court of appeals is reversed and the cause is remanded to the Franklin County Court of Common Pleas for dismissal.
Judgment reversed and cause remanded.
MOYER, C.J., SWEENEY, HOLMES, H. BROWN and RESNICK, JJ., concur.
DOUGLAS, J., not participating.