In 2019, in Timbs v. Indiana, the U.S. Supreme Court declared that the Excessive Fines Clause of the Eighth Amendment applies to the states through the Fourteenth Amendment.[1] Although most—but not all—lower courts had already assumed this, the removal of doubt has led to the next, and much more interesting, question: What makes a fine unconstitutionally “excessive”?

The Ohio Supreme Court’s State v. O’Malley is one of the latest cases to address this question.[2] Handed down on September 15, 2022, the majority and dissenting opinions illustrate the knotty issues courts are wrestling with in the wake of Timbs. They also demonstrate a lack of development in state constitutional law on similar issues, both by the courts and by litigants.

Facts and Background

In O’Malley, a repeat drunk driver faced the forfeiture of his vehicle. The defendant owned a 2014 Chevrolet Silverado worth approximately $31,000. O’Malley was driving the truck early on July 4, 2018, when an Ohio state trooper pulled him over.[3] He handed over his credit card instead of his driver’s license and was unable to provide his address. He was then arrested and charged with (1) operating a vehicle while intoxicated (OVI), (2) refusing to submit to a chemical test, and (3) not staying within marked lanes. He pled no contest to the OVI charge, and the others were dismissed.

Concurrently with his arrest, the authorities seized O’Malley’s truck. They then proceeded with its forfeiture once he was convicted. Under Ohio statutes, a defendant who owns the vehicle they were driving forfeits the vehicle upon their third OVI within ten years, which was the case with O’Malley. However, if the defendant does not own the vehicle they were driving then they do not forfeit a different vehicle they may otherwise own. O’Malley argued this differential treatment violated the equal protection clauses of the United States and Ohio constitutions.[4] And he attacked the forfeiture itself as an excessive fine that violates the Eighth Amendment. He did not bring a parallel excessive fines claim under the Ohio Constitution,[5] even though Ohio (like 46 other states) has its own Excessive Fines Clause.[6]

Trial court proceedings

The trial court rejected all three claims. It applied the rational-basis test to both equal protection claims, simply requiring the law to have a rational relationship to a legitimate state interest.[7] The court reasoned that the forfeiture provision furthered the legitimate goal of limiting access to vehicles for drunk drivers.

As for the excessive fines claim, the trial court applied a multipart test where it weighed several factors.[8] It found important that the fine itself was the very piece of property that could have harmed others in the community. On the other hand, it considered the property’s value—$31,000—and the fact that it was over eleven times the maximum fine of $2,750 for the OVI offense.[9] Further, it stated that although O’Malley had used the vehicle to go to work at one point, he did not seem terribly disposed to find employment, and no family member was financially dependent on him. Further, although he had not harmed anyone, the court stated that O’Malley put the public at risk. Taken together, these facts outweighed the admittedly large financial impact of the fine and the court ruled it was not constitutionally excessive.[10]

O’Malley appealed the forfeiture to the Ohio Court of Appeals, where all three judges rejected his equal protection claims, but only two rejected his excessive fines claim. The dissent argued the forfeiture was an excessive fine given its “drastic impact” on O’Malley’s financial condition.[11]

Equal Protection at the Ohio Supreme Court

O’Malley petitioned the Ohio Supreme Court, which granted review. The court affirmed on all three claims, with Chief Justice Maureen O’Connor, Justice Patrick Dewine, and Justice Melody Stewart  joining Justice Patrick Fischer’s majority opinion. Justice Sharon Kennedy concurred in the judgment only, with no opinion. Justice Michael Donnelly, joined by Justice Jennifer Brunner, dissented.

The majority disposed of the equal protection claims as the trial court had, applying the rational-basis test.[12] It did not consider the Ohio Constitution’s Equal Protection Clause separately. Ohio’s clause is one of very few that predate the Fourteenth Amendment. Adopted in 1851, it reads, “All political power is inherent in the people. Government is instituted for their equal protection and benefit.” The Ohio Supreme Court has almost always read the state clause as having the same meaning as the federal Equal Protection Clause. Justice Fischer indicated in a concurrence in 2018 that he was open to a reevaluation of that conclusion, given the state clause’s different language and history.[13] O’Malley argued that the court could interpret the Ohio clause independently, but it didn’t develop the argument.[14] Thus, this did not appear to be enough to take up Justice Fischer’s invitation.

Excessive Fines at the Ohio Supreme Court

On excessive fines, the court provided a lot of analysis, but no new test or standard. Weighing factors much like the trial court did, it concluded the forfeiture of O’Malley’s truck was not an excessive fine.

The court observed that the U.S. Supreme Court has not provided much guidance on what is an “excessive fine” other than it is when the fine becomes “grossly disproportionate.” The only time the U.S. Supreme Court has squarely addressed this issue was in United States v. Bajakajian.[15] There, it found a forfeiture of $357,144 in cash was excessive when the only failure of the property owner was to not report the cash when leaving the country. The Court also found significant that the maximum fine for the crime at issue, apart from the forfeiture, was only $5,000, that the property owner had an understandable suspicion of government, and that the money had been lawfully obtained.[16]

The O’Malley court also explained that in a pre-Bajakajian case, State v. Hill, the Ohio Supreme Court had addressed the issue, but that “[w]e declined to set forth a bright-line test and instead, we encouraged trial courts to analyze forfeitures ‘in light of the principles’ outlined in our opinion.”[17] The Hill court had provided eight factors to consider.

The O’Malley court surveyed what other lower courts had done, noting various factors. One where courts were split was whether to consider the economic impact of the fine given the defendant’s particular circumstances. For example, after Timbs was remanded, the Indiana Supreme Court concluded this was a valid consideration, observing that a fine may be very significant to someone of limited means but not to someone who is rich.[18] Other courts, the O’Malley court noted, had disagreed. It nevertheless commended the Indiana Supreme Court for its “laudable attempts” which included considering “the harshness of the punishment, the severity of the offenses, and the defendant’s culpability.”[19]

Despite this show of respect for Indiana, the O’Malley court claimed it did not embrace the Timbs standard. It concluded there simply is not a consensus among other courts and declined the invitation to set forth a multifactored test for what is “grossly excessive” and instead simply relied on the decisions of Hill and Bajakajian. It then went through a consideration of various factors much like the trial court did, including the value of the vehicle, the gravity of the offense, and that O’Malley put other people at risk in committing the crime.[20] It also noted that the “crime-to-forfeiture” ratio analysis that had played a large role in Bajakajian was of limited utility. Thus, the court concluded the forfeiture was not an “excessive fine.” Although the court distanced itself from the Indiana court’s approach, O’Malley’s method of weighing various factors was not too dissimilar from that of Timbs.

Dissent

In dissent, Justice Donnelly disagreed with the underlying conclusion, but also with the majority’s failure to provide a standard for lower courts to apply, calling what the majority did mere “error correction.”[21] The dissent found important the ratio of fine-to-forfeiture, and also the fact that the underlying crime was in fact a misdemeanor, not a felony. It also discussed the role that fines play in contemporary society in exacerbating economic inequality, citing to recent scholarship on the subject.[22]

Conclusion

Overall, O’Malley does add to the caselaw of courts grappling with the Excessive Fines Clause and the Bajakajian standard. But given that it admittedly did not adopt a standard of its own and instead weighed a long list of nonexclusive factors, it only adds to that caselaw in a basic sense. Further, the case is an example of parties either not raising or not developing state constitutional claims and only taking “one shot” when two are available.[23]

[1] Timbs v. Indiana, 139 S. Ct. 682 (2019).

[2] State v. O’Malley, No. 2022-Ohio-3207, slip op., available at https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2022/2022-ohio-3207.pdf.

[3] Id. at 2.

[4] Id. at 3.

[5] Id. at 10.

[6] Nicholas M. McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause, 40 Hast. Con. L.Q. 833, 877 n.177 (2013). Further, the three other states—Illinois, Vermont, and Louisiana—have clauses with similar language. Id.

[7] O’Malley, No. 2022-Ohio-3207, slip op. at 3.

[8] Id. at 4-5.

[9] Id. at 4 (noting Ohio R.C. 4511.19).

[10] Id. at 5.

[11] Id. at 6-7.

[12] Id. at 7-10.

[13] Stolz v. J&B Steel Erectors, 122 N.E.3d 1228, 1237 (Ohio 2018) (Fischer, J., concurring).

[14] Appellant’s Opening Brief at 24, , O’Malley, No. 2022-Ohio-3207, available at https://www.supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=895995.pdf&subdirectory=2020-0859\DocketItems&source=DL_Clerk.

[15] 524 U.S. 321 (1998).

[16] O’Malley, No. 2022-Ohio-3207, slip op. at 337-38.

[17] Id. (quoting State v. Hill, 635 N.E.2d 1248, 1256 (Ohio 1994)).

[18] Timbs v. Indiana, 134 N.E.3d 22, 36 (Ind. 2019).

[19] O’Malley, No. 2022-Ohio-3207, slip op. at 16.

[20] Id. at 18-35.

[21] Id. at 37 (Donnelly, J., dissenting).

[22] Id. at 39-40.

[23] A metaphor Judge Jeffrey Sutton uses in his state constitutional work. Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 7 (2018).

 

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