The Application of the Double Jeopardy Clause to Civil Cases in Ohio

Introduction

The Double Jeopardy Clause has historically been applied only to criminal cases.  However, there has been a rise in the times attorneys have attempted to apply the provisions of this clause to civil situations.  For example, where one is charged with a crime only to have civil sanctions imposed against him in another proceeding, or vice versa.  Logic dictates that you should not occur but it is not always that clear.

Double Jeopardy Clause

The Double Jeopardy Clause in the 5th Amendment of the United States Constitution states that no one will “be subject for the same offense to be twice put in jeopardy of life or limb.”[1]  The Supreme Court has stated that there are three protections for the accused in the Double Jeopardy Clause, specifically:

“It protects against a second prosecution for the same offense after acquittal.  It protects against a second prosecution for the same offense after conviction.  And it protects against multiple punishments for the same offense.” [emphasis added].[2]

Furthermore, the United States Supreme Court has described the Double Jeopardy Clause as follows:

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”[3]

Additionally, the Ohio Constitution in Section 10, Article I contains a double jeopardy provision and the Ohio Supreme Court has stated “that the Fifth Amendment’s Double Jeopardy Clause (made applicable to the states by the Fourteenth Amendment) and Ohio’s counterpart are sufficiently similar to warrant consultation of federal jurisprudence when analyzing Ohio’s proscription against placing persons ‘twice . . . in jeopardy for the same offense.'”[4]

To determine if the Double Jeopardy Clause bars successive prosecutions the Court must use the test outlined in the case of Blockburger vs. United States.[5]  Specifically, the Double Jeopardy Clause “prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes unless each statute ‘requires proof of a fact which the other does not.'”[6]

After review if the Court determines that the test “reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, the subsequent prosecution is barred.”[7]  Specifically, “(a)n offense may be a lesser included offense of another if (i) the offense carries a lessor penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lessor offense.”[8]

Double Jeopardy Application to Civil Cases

The Double Jeopardy Clause only provides protection with regards to criminal offenses and not civil proceedings.  However, there are exceptions as the distinction between criminal and civil is not always clear.  Therefore, the Court must look at the specific facts of the individual case to determine if the Double Jeopardy Clause is applicable.

In Hudson vs. U.S. the Supreme Court set forth a two-step approach for the Court to employ to deal with these types of situations.[9]  Under the first step of this test the Court must determine if the legislature intended the punishment to be criminal or civil.[10]  Second, even if a civil penalty was intended the statutory scheme could be so punitive in purpose or effect as to transform what was intended as a civil remedy into a criminal one.[11]  To determine this the Court must look at the following:

• Whether the sanction involves an affirmative disability or restrain;
• Whether it has historically been regarded as punishment;
• Whether it comes into play only on a finding of scienter;
• Whether its operation will promote the traditional aims of punishment, retribution and deterrence;
• Whether the behavior to which it applies is already a crime;
• Whether an alternative purpose to which it may rationally be connected is assignable for it; and
• Whether it appears excessive in relation to the alternative purpose assigned.[12]

For example, in the case of State vs. Mobley the Court agreed that the criminal prosecution of one who had been found in contempt for non-payment of child support violated the Double Jeopardy Clause.[13]  Specifically, Mr. Mobley was held in contempt for not paying his child support and sentenced to thirty days in jail.[14]  After this he was indicted by the grand jury “on two counts of felony non-support under R.C. 2919.21 (B).[15]  Mr. Mobley filed to dismiss the indictment on the basis “further prosecution was precluded under the Double Jeopardy Clause.”[16]

The trial court agreed and the State appealed on the basis that prosecution did not violate the Double Jeopardy Clause because the “(c)ontempt of court and a felony violation of R.C. 2919.21(B) each contain an element that the other does not.  Therefore, under the test announced in Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, the earlier finding on contempt does not bar the later prosecution for felony non-support under R.C. 2919.21(B).[17] The Court agreed with Mr. Mobley on the basis “that criminal contempt has a greater intent requirement than a non-support charge under R.C. 2919.21(B)” and “the criminal contempt conviction in this case fits the criteria to be a lesser included offense of non-support of dependents under R.C. 2919.21(B).”[18]

Conclusion

Therefore, if you run into this type of situation you need to apply the factors set forth above to the statutes in your case to determine whether or not double jeopardy applies.  However, you should seek knowledgeable legal counsel to assist you with this.  Therefore, when this occurs call Attorney Dan Guinn of the Guinn Law Firm, LLC at 330-343-1421 or email him at attorneydanguinn.com.

[1] U.S. Const. Am.5.

[2] North Carolina vs. Pearce, 395, U.S. 711, 89 S. Ct. 2089, 23 L. Ed. 2d 656 (1969) and State vs. Hague, 61 Ohio App. 3d 756, 573 N.E.2d 1150 (9th Dist. Summit County 1989).

[3] Green vs. U.S., 355 U.S. 184, 187-88, 78 S. Ct. 221 2 L. Ed. 2d 199, 77 Ohio L. Abs. 202, 61 A.L.R.2d 1119 (1957).

[4] State vs. Rance, 85 Ohio St. 3d 632, 634, 1999-Ohio-291, 710 N.E.2d 699 (1999) (citing State vs. Moss, 69 Ohio St. 2d 515, 518, 23 Ohio Op. 3d 447, 433 N.E.2d 181 (1982)).

[5] Blockburger vs. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306.

[6] State vs. Tolbert (1991), 60 Ohio St.3d 89, paragraph one of the syllabus.

[7] Id. at paragraph one of the syllabus.

[8] State vs. Deem (1988), 40 Ohio St.3d 205, 206, paragraph three of the syllabus.

[9] Hudson vs. U.S., 522 U.S. 93, 118 S.Ct. 488, 139 L. Ed. 2d 450, 162 A.L.R. Fed. 737 (1997).

[10] Id.

[11] Id.

[12] Id.

[13] State vs. Mobley, 2002-Ohio-5535, (Montgomery County).

[14] Id. at paragraph two.

[15] Id. at Paragraph three.

[16] Id.

[17] Id. at paragraph four.

[18] Id. at paragraph twenty.