ODNR may recover nearly $28,000 from a hunter who illegally shot a deer of extraordinary size in Huron County.

ODNR may recover nearly $28,000 from a hunter who illegally shot a deer of extraordinary size in Huron County.

The Ohio Department of Natural Resources (ODNR) is required by state law to recover from a convicted offender the civil restitution value of an antlered white-tailed deer with antler measurements greater than a specific amount, the Ohio Supreme Court ruled today. The law mandates this step when the measurements total a gross score more than 125 inches.

The relevant statutes unambiguously express the legislative intent to permit ODNR to file a civil case to recover the restitution value even when the department had seized the deer meat and antlers during a criminal investigation and was awarded possession of them as a result of a conviction, Justice Sharon L. Kennedy wrote in the 4-3 decision.

Although ODNR notified Arlie Risner after his conviction for killing the unusually large deer that he owed the state nearly $28,000 in restitution, today’s ruling returns the case to the trial court to consider Risner’s constitutional claims that were not addressed at that time.

The decision affirmed the judgment of the Sixth District Court of Appeals.

Man Caught Hunting on Property Without Consent
Officers from ODNR’s Division of Wildlife investigated a complaint in November 2010 that Risner was hunting without written permission on property owned by CSX Railway in Huron County. The wildlife officers found a tree stand, deer remains, and blood on the land. They also seized antlers from a taxidermist and meat from a butcher. Risner had delivered both to the businesses, and DNA tests confirmed that all the samples came from one white-tailed deer. Based on measurements taken of the antlers, the official score of the animal was 228 6/8 inches, an exceptionally large deer in the state.

Hunting without permission violates state law, and Risner was charged in January 2011. He pled no contest and was found guilty. The trial court suspended Risner’s hunting license for one year and levied a $200 fine, $90 in restitution to ODNR for a processing fee paid to the butcher, and $55 in court costs. The court ordered that the meat and, later, the antlers be forfeited to ODNR.

Three months later, ODNR sent a letter to Risner telling him he owed $27,851.33 in restitution to the state because of his conviction. The agency revoked his state hunting license until he paid the money owed.

Lower Courts Disagree on Law
Risner filed a lawsuit against ODNR in May 2012. He claimed the restitution order was unconstitutional and illegal under state law because the state took possession of the deer as part of the criminal case. ODNR filed a counterclaim to recover the restitution value of the deer.  The trial court ruled that the statute’s plain language prevented ODNR from seeking restitution after the agency had been awarded possession of the deer and antlers in the earlier proceeding.  The court did not address Risner’s constitutional claims.

On appeal, the Sixth District reversed and ordered the case back to the trial court to consider the constitutional issues. Risner appealed to the Ohio Supreme Court.

State Law Requires Civil Restitution
“R.C. 1531.201(B) states that ODNR may ‘recover possession of or the restitution value of any wild animal’ in the civil action that ODNR is authorized to file against an individual who has violated R.C. Chapter 1531 or 1533 or any division rule,” Justice Kennedy wrote for the majority. “There is no language qualifying ODNR’s authority to recover possession of the animal or its civil restitution value upon whether either had been previously awarded to ODNR in a related criminal proceeding.”

She added that this interpretation is reinforced by the subsequent parts of the law. Division (C) states that a person convicted of violating laws regarding holding, taking, buying, selling, or possessing an antlered white-tailed deer with a gross score higher than 125 inches “also shall pay an additional restitution value.” And the next division provides that ODNR “shall revoke” the hunting license of a person convicted of an offense until restitution is paid.

“ODNR does not have discretion not to impose the additional civil restitution required by R.C. 1531.201(C) or not to revoke a hunting license as required by R.C. 1531.201(D),” Justice Kennedy explained. “Contrary to the dissent’s assertion, these are the only actions mandated by R.C. 1531.201; recovering possession of the animal is not mandated by R.C. 1531.201.”

“Additionally, it is the violation of R.C. Chapter 1531 or 1533 or a division rule — and only the violation — that triggers the mandatory duties in R.C. 1531.201(C) and (D),” she continued.

Legislature Made Its Goal Clear
Justice Kennedy pointed out that had R.C. 1531.201 been ambiguous, the statute’s legislative history supports the interpretation reached by the court. Backers of 2007 legislation testified about a need to strengthen the wildlife laws so poachers took them seriously, she noted.

“It is evident from these excerpts that the legislative intent in enacting R.C. 1531.201 is to preserve Ohio’s wildlife for legitimate hunters and naturalists and to provide a significant deterrent to those individuals who seek to harm the state’s aesthetic, economic, and recreational interests,” Justice Kennedy reasoned. “Requiring ODNR to choose between possession of the deer’s remains and restitution when a white-tailed deer of this caliber is poached removes all deterrent effect and allows the ‘cost of doing business’ mindset to prevail.”

Constitutional Issues Not Before Supreme Court
Justice Kennedy explained that Risner raised claims in the trial court involving equal protection, due process, separation of powers, rights to a trial by jury, an open court, and a remedy. She concluded that these issues remain to be resolved by the trial court.

In addition, she noted that the dissent’s assertion that the statute allows the state to recover twice in violation of the constitutional prohibition against double jeopardy was not properly before the Supreme Court. Justice Kennedy explained that Risner had forfeited the issue by failing to raise double jeopardy in the lower courts.

Justices’ Votes
In the court’s majority were Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer and Judith L. French.

Justice Terrence O’Donnell dissented in an opinion joined by Justices Judith Ann Lanzinger and William M. O’Neill.

Dissent: Only Court Can Impose Restitution
Justice O’Donnell contended that the majority has misinterpreted R.C. 1531.201 to require ONDR to recover both possession of the animal and its restitution value, yet the statute is written using the word “or,” not “and.” He also pointed out that the General Assembly could have expressly imposed a civil penalty for taking the deer in addition to criminal penalties, but it did not. Instead, the legislature used the word “restitution,” which means compensation for harm the offender has caused calculated based on the amount of actual economic loss suffered.  And in this case, he explained, the restitution sought is “significantly greater” than the state’s economic loss, because ODNR had already recovered the antlers that made the deer valuable. Justice O’Donnell concluded nothing justified an additional recovery of more than $27,000.

In his view, the purpose of R.C. 1531.201(C)(1) is to calculate the animal’s restitution value when there is a criminal conviction and the court imposes a sentence in criminal court.

“The statute does not require ODNR to assess and collect the additional restitution value in a civil action; rather, assessing restitution is a matter for the court imposing sentence for a conviction,” Justice O’Donnell wrote. “[H]ere, the sentencing court had already ordered restitution and the forfeiture of the animal in the criminal proceeding. Thus, ODNR’s imposing the additional restitution value is an additional penalty.”

For this reason, he explained, ODNR’s restitution order raised constitutional questions. Risner had already been sentenced by the trial court, and the double jeopardy clause bars imposition of a second punishment at a subsequent proceeding. And, Justice O’Donnell added, punishment for a crime must be imposed by a court at sentencing, not by an executive agency in a separate proceeding.

Concluding that the state is not entitled to a double recovery, he would have reversed the Sixth District’s judgment and reinstated summary judgment granted by the trial court in Risner’s favor.

2014-0242. Risner v. Ohio Dept. of Natural Resources, Slip Opinion No. 2015-Ohio-3731.

View oral argument video of this case.

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