Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, Slip Opinion No. 2010-Ohio-4908.
Franklin App. No. 08AP-1032, 183 Ohio App.3d 390, 2009-Ohio-3483. Judgment of the court of appeals reversed, and cause remanded to the court of appeals.
Preston, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, Acting C.J., concurs in judgment only.
Vernon L. Preston, J., of the Third Appellate District, sitting for Brown, C.J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4908.pdf
(Oct. 12, 2010) The Supreme Court of Ohio held today that a provision of state law placing a $10 value limit on the prizes that may be awarded for one play of a legal skill-based gaming machine is rationally related to legitimate government interests, and does not violate the equal protection clauses of the U.S. and Ohio Constitutions.
The Court’s 7-0 decision, authored by Justice Maureen O’Connor, reversed a ruling of the 10th District Court of Appeals.
In October 2007, the General Assembly adopted changes to R.C. Chapter 2915, the state’s anti-gambling statute. Among those changes was the insertion of new language distinguishing between illegal “schemes of chance” and legal skill-based amusement machines. In addition to other provisions distinguishing between permissible skill-based games and prohibited gambling, the bill limited the value of merchandise prizes or vouchers awarded for a single play of skill-based amusement machines to $10 or less.
Pickaway County Skilled Gaming LLC and Stephen S. Cline own and operate Spinners, an amusement game arcade located in Circleville. Shortly after the amendments to the gambling statute took effect, Spinners filed suit in the Franklin County Court of Common Pleas seeking a declaratory judgment that the prize-limit provision of the amended statute was unconstitutional, and seeking a permanent injunction barring the Ohio Attorney General from enforcing the prize-limit provision. The trial court granted summary judgment in favor of the state, rejecting the constitutional arguments advanced by the arcade owners. The owners appealed the trial court’s decision to the 10th District Court of Appeals.
On review, the 10th District ruled that the prize limit set forth in R.C. 2915.01(AAA)(1) was unconstitutional under the equal protection clauses of the U.S. and Ohio Constitutions. In its opinion, the court of appeals held that the legislative purpose of the statute was to prohibit games of chance while permitting the operation of skill-based amusement machines, and that the distinction between machines that award prizes worth more than $10 and those that do not is not rationally related to the legislature’s goal of distinguishing between illegal chance-based and legal skill-based amusement machines. Having found the prize-limit provision unconstitutional on equal protection grounds, the court of appeals did not address a separate argument advanced by the arcade owners that the challenged provision was void for vagueness. The Supreme Court granted discretionary review of the court of appeals’ equal protection ruling.
In today’s decision, Justice O’Connor wrote: “The fact that one purpose of R.C. 2915.01(AAA) is to define ‘skill-based amusement machines’ for the purpose of identifying what gambling is illegal does not negate the possibility that the prize-value limit set forth in R.C. 2915.01(AAA)(1) may simultaneously serve other valid government interests. Indeed, the attorney general identifies two legitimate government interests that the prize-value limit purportedly serves.”
“First, the attorney general argues that the prize-value limit serves as an economic regulation of skill-based amusement machines. The state plainly has a legitimate interest in regulating its local economies. … The operation of skill-based amusement machines is a valid statewide industry in Ohio, and the state has a legitimate interest in establishing economic regulations for the industry, including regulating the prizes that may be awarded. Second, the attorney general contends that the prize-value limit protects against criminal acts and enterprises by acting as a prophylactic measure against illegal chance-based gambling. Courts have long recognized that state legislatures have a legitimate interest in regulating gambling. … Accordingly, the prize-value limit set forth in R.C. 2915.01(AAA)(1) satisfies the first prong of the rational-basis analysis. It serves two vital and valid government interests: economic regulation and protection against criminal acts and enterprises.”
“ … Therefore, we turn to whether the prize-value limit set forth in R.C. 2915.01(AAA)(1) is rationally related to the legitimate interests that the Attorney General has established in this case. We hold that it is. First, the ten-dollar prize-value limit set forth in R.C. 2915.01(AAA)(1) is a regulation that is part of the state’s scheme to protect its local economies. The statute is calculated to further the state’s interest by eliminating the lure of big prizes and thus minimizing irresponsible play while providing a legal safe harbor for harmless games (e.g., Skee-ball) that award token prizes.”
“ … The prize-value limit is also rationally related to the government’s interest in preventing criminal acts and enterprises by acting as a prophylactic measure against illegal, chance-based gambling. … Motivated by financial gain, operators of illegal chance-based amusement machines can easily alter games of chance to appear to be games of skill. Financial motivation may come from charging more to play illegal games of chance or from individuals who overspend in hopes of winning big prizes. … (T)he ten dollar prize-value limit is designed to eliminate the latter motivation. Furthermore, it stands to reason that players will not pay the same fee to play games that award a ten dollar prize as they would to play games that offer higher value prizes. By limiting the potential prizes awarded by skill-based amusement machines, R.C. 2915.01(AAA)(1) effectively limits the fee that operators can charge to play the games. Thus, the prize-value limit effectively removes the financial incentive for operators to disguise illegal chance-based machines as skill-based games.”
“ … We hold that the prize-value limit set forth in R.C. 2915.01(AAA)(1) is rationally related to legitimate government interests and does not violate the Equal Protection Clauses of the United States and Ohio Constitutions. We therefore reverse the judgment of the Tenth District Court of Appeals to the extent that it held otherwise. Because we hold that R.C. 2915.01(AAA)(1) does not violate the Equal Protection Clauses, PCSG and Cline’s void-for-vagueness argument is no longer moot. Since the court of appeals did not reach the merits of PCSG and Cline’s argument that R.C. 2915.01(AAA) (1) is void for vagueness, we remand the case to the Tenth District for consideration of PCSG and Cline’s first assignment of error.”
Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp, and by Judge Vernon L. Preston of the 3rd District Court of Appeals, who sat in place of Chief Justice Eric Brown. Justice Paul E. Pfeifer concurred in judgment only.
Contacts
Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.
Gail M. Zalimeni, 614.221.3151, for Pickaway County Skilled Gaming LLC.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Showing posts with label United States Constitution. Show all posts
Showing posts with label United States Constitution. Show all posts
Wednesday, October 13, 2010
Monday, August 30, 2010
Judge Kimbler Journal Entry on Motion to Suppress
On August 23, 2010, Judge Kimbler filed a journal entry denying a motion to suppress in the case of State of Ohio v. Michael A. McCarty, Case No. 10-CR-0163. A copy of the body of the motion appears below:
Case History
Mr. McCarty is charged with five crimes. He filed a motion to suppress on June 16, 2010 alleging that the State obtained both physical evidence and statements from Mr. McCarty by unconstitutional means. The Court heard Mr. McCarty’s motion on August 12, 2010. This entry sets forth the Court’s findings of fact, conclusions of law, and ruling on Mr. McCarty’s motion.
Findings of Fact
Early in the morning of April 19, 2010, Patrolman Matt Markley of the Wadsworth Police Department was on duty. That day he was working the 10 pm to 6 am shift. At approximately 1:20 am he made a traffic stop of a vehicle in which Mr. McCarty was a passenger.
Officer Markley made the stop after his cruiser’s radar unit clocked the car in which Mr. McCarty was a passenger doing 65 mph in a 50 mph zone. The car was driven by a Mary Moser.
At the start of his shift, Officer Markley was told that the day before there had been a series of car break-ins in Wadsworth. Property taken from the cars included electronic devices such as mp3 players and cell phones.
After making the stop, Officer Markley began to run the registration and license information for the vehicle and the driver. While he was running that information, he asked his dispatcher to contact a canine unit from Seville. Officer Markley wanted the canine unit to do a sniff around the car.
The request to dispatch the canine unit came in at 1:23 through the Medina County Sheriff’s Office Dispatch Center. The Seville Officer received the dispatch at 1:26 and he arrived at the scene at 1:31. When he arrived at the scene with his canine partner, Officer Markley briefed him on what he wanted done. The Seville officer then walked his canine partner around the stopped car. The dog alerted on the vehicle and the two officers began to search the car.
While they were searching the vehicle, Officer Markley discovered a bag with several cell phones in it, mp3 players, white wires, other electronic cords, and gloves. At that point Officer Markley gave both the driver and Mr. McCarty the warnings regarding their constitutional rights.
After receiving the warnings, Mr. McCarty told the Officer that he had bought the bag and its contents for $50.00 from a person in a park. He also said that he knew the items in the bag were stolen. At that point, Officer Markley arrested Mr. McCarty for receiving stolen property.
After arresting Mr. McCarty for receiving stolen property, Officer Markley took him down to the Wadsworth Police Station. Over the next few hours Mr. McCarty admitted to stealing the items in the bag on April 18 and 19. During this time he was not deprived of food or drink, wasn’t under the influence of drugs and/or alcohol, and the Officer didn’t make any promises or threats to get him to make statements.
Conclusions of Law
A stop is constitutional if it is supported by either a reasonable suspicion or probable cause." State v. Molek, 11th Dist. No. 2001-P-0147, 2002 Ohio 7159, at P25. In order to make an investigative stop within constitutional parameters, a police officer must be able to cite articulable facts that give rise to reasonable suspicion of criminal behavior. Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889.
The scope and duration of an investigative stop must not exceed what is necessary to complete the purpose for which the initial stop was made. Florida v. Royer (1983), 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229; State v. Robinette (1997), 80 Ohio St.3d 234, 1997 Ohio 343, 685 N.E.2d 762, paragraph one of the syllabus; State v. Chatton (1984), 11 Ohio St.3d 59, 63, 11 Ohio B. 250, 463 N.E.2d 1237.
"In conducting an investigative traffic stop, an officer may detain a motorist for a period of time sufficient to run a computer check on his license, registration, and vehicle plates and to issue him a warning or a citation." State v. Rusnak (1997), 120 Ohio App.3d 24, 27, 696 N.E.2d 633, citing Delaware v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660.
An officer, however, cannot use the lawfulness of an initial stop to conduct a fishing expedition for evidence of another crime. State v. Bevan (1992), 80 Ohio App.3d 126, 130, 608 N.E.2d 1099.
Whether or not a detention is reasonable depends upon the totality of the circumstances and the facts of each case. State v. Bobo (1988), 37 Ohio St.3d 177, 178, 524 N.E.2d 489.
Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602, protects a defendant's Fifth Amendment right against self-incrimination by prohibiting admission of inculpatory statements resulting from custodial interrogation unless law enforcement officers have followed enumerated procedural safeguards.
Those safeguards include the arresting officer advising the arrested persons that he or she has a right to remain silent; a right to stop answering or talking to the police at any time; a right to have an attorney present during any interrogation; and the right to have a court-appointed attorney if the arrested person cannot afford to hire an attorney.
An officer may make a warrantless arrest if he has probable cause to believe that the person being arrested committed a crime. Probable cause exists if the facts and circumstances known to the officer warrant a prudent person in believing that the person being arrested had committed a crime. Beck v. Ohio (1964), 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142.
Reasonable suspicion of drug-related activity is not required, prior to subjecting an otherwise lawfully-detained vehicle to a canine sniff. State v. Ramirez, (2004) Ohio 6541 (9th District, Dec. 8, 2004); State v. Lynn (2000), 137 Ohio App.3d 402, syllabus at paragraph six; State v. Rusnak (1997), 120 Ohio App.3d 24, 28-29; and State v. Carlson (1995),102 Ohio App. 3d 585 (9th District, April 19, 2005); State v. Blednick (1997), Ohio App. LEXIS 4884 (9th District, Nov. 5, 1997); State v. Ray (2004), Ohio App. LEXIS 3045 (9th District, June, 30 2004).
A canine sniff by a well-trained narcotics detection dog is sui generis and does not constitute a "search" under the Fourth Amendment to the United States Constitution or under the Ohio Constitution. United States v. Place (1983), 462 U.S. 696, 707, (canine sniff of luggage at airport); see also United States v. Reed (6th Cir. 1998), 141 F.3d 644, 649-50 (canine sniff of dresser while police were lawfully present inside residence); State v. Lynn
(2000), 137 Ohio App.3d 402 (canine sniff of inoperable and undetained vehicle); State v. French (1995), 104 Ohio App.3d 740, syllabus at paragraph nineteen; State v. Carlson (1995), 102 Ohio App. 3d 585; State v. Palicki (1994), 97 Ohio App.3d 175, syllabus at paragraphs four and five; and State v. Riley (1993), 88 Ohio App.3d 468, syllabus at paragraph one (canine sniffs of lawfully detained vehicles).
Once the drug sniffing dog had “hit” on the vehicle, the trooper had probable cause to search the vehicle without a warrant. See State v. Carlson (1995), 102 Ohio App.3d 585.
The United States Supreme Court has held that the constitutional right to due process of law is violated when a conviction is founded upon an involuntary or coerced confession, even if there is ample evidence apart from the confession to support the conviction. Jackson v. Denno (1964), 378 U.S. 368, 376, 12 L. Ed. 2d 908, 84 S. Ct. 1774; Lynumn v. Illinois (1963), 372 U.S. 528, 537, 9 L. Ed. 2d 922, 83 S. Ct. 917. A suspect's waiver of his right not to incriminate himself and his subsequent confession must be made voluntarily, knowingly, and intelligently. Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
Absent evidence that a suspect's will was overborne and his capacity for self-determination was critically impaired because of coercive police conduct, the decision of a suspect to waive his Fifth Amendment privilege is made voluntarily. State v. Dailey (1990), 53 Ohio St. 3d 88, 91-92, 559 N.E.2d 459.
To determine voluntariness, the court should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the defendant; the length, intensity, and frequency of the interrogation; and the existence of physical deprivation or mistreatment, or the existence of any threat or inducement. State v. Edwards (1976), 49 Ohio St. 2d 31, 40-41, 358 N.E.2d 1051, vacated as to death penalty (1978), 438 U.S. 911, 98 S. Ct. 3135, 57 L. Ed. 2d 1154.
After a suspect is arrested the police must advise of the suspect of the constitutional right not to incriminate himself; that anything the suspect says can and will be used against the suspect; that if the suspect starts talking, the suspect can stop at any time; that the suspect has the right to an attorney; and that if the suspect can’t afford one, one will be appointed to represent the suspect. Miranda v. Arizona (1966), 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694; 1966 U.S. LEXIS 2817; 10 A.L.R.3d 974.
Holding
The Court finds that the motion to suppress should be overruled. Officer Markley had a reasonable and articulable suspicion that the driver of the car in which Mr. McCarty was a passenger was violating the traffic laws of Ohio. This suspicion was based on the reading he got from his cruiser’s radar unit.
Once he stopped the vehicle, he had the right to ask for a drug sniffing dog, provided that he did not drag out the stop in order to get the dog to the car. Since the dog arrived at the scene within about 10 minutes of the stop, and since a stop under 20 minutes is presumed reasonable, the sniff was constitutionally permissible.
Once the dog alerted on the vehicle, Officer Markley had probable cause to search the vehicle. Finding the bag gave him the basis to interrogate Mr. McCarty concerning the bag’s contents. Mr. McCarty’s statements about buying the bag and knowing the contents were stolen then gave Officer Markley probable cause for a warrantless arrest.
Officer Markley’s interrogation of Mr. McCarty was constitutional. He advised Mr. McCarty of his constitutional rights and did not apply unconstitutional coercion to obtain the statements.
Order
Mr. McCarty’s motion to suppress is denied.
SO ORDERED.
Case History
Mr. McCarty is charged with five crimes. He filed a motion to suppress on June 16, 2010 alleging that the State obtained both physical evidence and statements from Mr. McCarty by unconstitutional means. The Court heard Mr. McCarty’s motion on August 12, 2010. This entry sets forth the Court’s findings of fact, conclusions of law, and ruling on Mr. McCarty’s motion.
Findings of Fact
Early in the morning of April 19, 2010, Patrolman Matt Markley of the Wadsworth Police Department was on duty. That day he was working the 10 pm to 6 am shift. At approximately 1:20 am he made a traffic stop of a vehicle in which Mr. McCarty was a passenger.
Officer Markley made the stop after his cruiser’s radar unit clocked the car in which Mr. McCarty was a passenger doing 65 mph in a 50 mph zone. The car was driven by a Mary Moser.
At the start of his shift, Officer Markley was told that the day before there had been a series of car break-ins in Wadsworth. Property taken from the cars included electronic devices such as mp3 players and cell phones.
After making the stop, Officer Markley began to run the registration and license information for the vehicle and the driver. While he was running that information, he asked his dispatcher to contact a canine unit from Seville. Officer Markley wanted the canine unit to do a sniff around the car.
The request to dispatch the canine unit came in at 1:23 through the Medina County Sheriff’s Office Dispatch Center. The Seville Officer received the dispatch at 1:26 and he arrived at the scene at 1:31. When he arrived at the scene with his canine partner, Officer Markley briefed him on what he wanted done. The Seville officer then walked his canine partner around the stopped car. The dog alerted on the vehicle and the two officers began to search the car.
While they were searching the vehicle, Officer Markley discovered a bag with several cell phones in it, mp3 players, white wires, other electronic cords, and gloves. At that point Officer Markley gave both the driver and Mr. McCarty the warnings regarding their constitutional rights.
After receiving the warnings, Mr. McCarty told the Officer that he had bought the bag and its contents for $50.00 from a person in a park. He also said that he knew the items in the bag were stolen. At that point, Officer Markley arrested Mr. McCarty for receiving stolen property.
After arresting Mr. McCarty for receiving stolen property, Officer Markley took him down to the Wadsworth Police Station. Over the next few hours Mr. McCarty admitted to stealing the items in the bag on April 18 and 19. During this time he was not deprived of food or drink, wasn’t under the influence of drugs and/or alcohol, and the Officer didn’t make any promises or threats to get him to make statements.
Conclusions of Law
A stop is constitutional if it is supported by either a reasonable suspicion or probable cause." State v. Molek, 11th Dist. No. 2001-P-0147, 2002 Ohio 7159, at P25. In order to make an investigative stop within constitutional parameters, a police officer must be able to cite articulable facts that give rise to reasonable suspicion of criminal behavior. Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889.
The scope and duration of an investigative stop must not exceed what is necessary to complete the purpose for which the initial stop was made. Florida v. Royer (1983), 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229; State v. Robinette (1997), 80 Ohio St.3d 234, 1997 Ohio 343, 685 N.E.2d 762, paragraph one of the syllabus; State v. Chatton (1984), 11 Ohio St.3d 59, 63, 11 Ohio B. 250, 463 N.E.2d 1237.
"In conducting an investigative traffic stop, an officer may detain a motorist for a period of time sufficient to run a computer check on his license, registration, and vehicle plates and to issue him a warning or a citation." State v. Rusnak (1997), 120 Ohio App.3d 24, 27, 696 N.E.2d 633, citing Delaware v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660.
An officer, however, cannot use the lawfulness of an initial stop to conduct a fishing expedition for evidence of another crime. State v. Bevan (1992), 80 Ohio App.3d 126, 130, 608 N.E.2d 1099.
Whether or not a detention is reasonable depends upon the totality of the circumstances and the facts of each case. State v. Bobo (1988), 37 Ohio St.3d 177, 178, 524 N.E.2d 489.
Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602, protects a defendant's Fifth Amendment right against self-incrimination by prohibiting admission of inculpatory statements resulting from custodial interrogation unless law enforcement officers have followed enumerated procedural safeguards.
Those safeguards include the arresting officer advising the arrested persons that he or she has a right to remain silent; a right to stop answering or talking to the police at any time; a right to have an attorney present during any interrogation; and the right to have a court-appointed attorney if the arrested person cannot afford to hire an attorney.
An officer may make a warrantless arrest if he has probable cause to believe that the person being arrested committed a crime. Probable cause exists if the facts and circumstances known to the officer warrant a prudent person in believing that the person being arrested had committed a crime. Beck v. Ohio (1964), 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142.
Reasonable suspicion of drug-related activity is not required, prior to subjecting an otherwise lawfully-detained vehicle to a canine sniff. State v. Ramirez, (2004) Ohio 6541 (9th District, Dec. 8, 2004); State v. Lynn (2000), 137 Ohio App.3d 402, syllabus at paragraph six; State v. Rusnak (1997), 120 Ohio App.3d 24, 28-29; and State v. Carlson (1995),102 Ohio App. 3d 585 (9th District, April 19, 2005); State v. Blednick (1997), Ohio App. LEXIS 4884 (9th District, Nov. 5, 1997); State v. Ray (2004), Ohio App. LEXIS 3045 (9th District, June, 30 2004).
A canine sniff by a well-trained narcotics detection dog is sui generis and does not constitute a "search" under the Fourth Amendment to the United States Constitution or under the Ohio Constitution. United States v. Place (1983), 462 U.S. 696, 707, (canine sniff of luggage at airport); see also United States v. Reed (6th Cir. 1998), 141 F.3d 644, 649-50 (canine sniff of dresser while police were lawfully present inside residence); State v. Lynn
(2000), 137 Ohio App.3d 402 (canine sniff of inoperable and undetained vehicle); State v. French (1995), 104 Ohio App.3d 740, syllabus at paragraph nineteen; State v. Carlson (1995), 102 Ohio App. 3d 585; State v. Palicki (1994), 97 Ohio App.3d 175, syllabus at paragraphs four and five; and State v. Riley (1993), 88 Ohio App.3d 468, syllabus at paragraph one (canine sniffs of lawfully detained vehicles).
Once the drug sniffing dog had “hit” on the vehicle, the trooper had probable cause to search the vehicle without a warrant. See State v. Carlson (1995), 102 Ohio App.3d 585.
The United States Supreme Court has held that the constitutional right to due process of law is violated when a conviction is founded upon an involuntary or coerced confession, even if there is ample evidence apart from the confession to support the conviction. Jackson v. Denno (1964), 378 U.S. 368, 376, 12 L. Ed. 2d 908, 84 S. Ct. 1774; Lynumn v. Illinois (1963), 372 U.S. 528, 537, 9 L. Ed. 2d 922, 83 S. Ct. 917. A suspect's waiver of his right not to incriminate himself and his subsequent confession must be made voluntarily, knowingly, and intelligently. Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
Absent evidence that a suspect's will was overborne and his capacity for self-determination was critically impaired because of coercive police conduct, the decision of a suspect to waive his Fifth Amendment privilege is made voluntarily. State v. Dailey (1990), 53 Ohio St. 3d 88, 91-92, 559 N.E.2d 459.
To determine voluntariness, the court should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the defendant; the length, intensity, and frequency of the interrogation; and the existence of physical deprivation or mistreatment, or the existence of any threat or inducement. State v. Edwards (1976), 49 Ohio St. 2d 31, 40-41, 358 N.E.2d 1051, vacated as to death penalty (1978), 438 U.S. 911, 98 S. Ct. 3135, 57 L. Ed. 2d 1154.
After a suspect is arrested the police must advise of the suspect of the constitutional right not to incriminate himself; that anything the suspect says can and will be used against the suspect; that if the suspect starts talking, the suspect can stop at any time; that the suspect has the right to an attorney; and that if the suspect can’t afford one, one will be appointed to represent the suspect. Miranda v. Arizona (1966), 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694; 1966 U.S. LEXIS 2817; 10 A.L.R.3d 974.
Holding
The Court finds that the motion to suppress should be overruled. Officer Markley had a reasonable and articulable suspicion that the driver of the car in which Mr. McCarty was a passenger was violating the traffic laws of Ohio. This suspicion was based on the reading he got from his cruiser’s radar unit.
Once he stopped the vehicle, he had the right to ask for a drug sniffing dog, provided that he did not drag out the stop in order to get the dog to the car. Since the dog arrived at the scene within about 10 minutes of the stop, and since a stop under 20 minutes is presumed reasonable, the sniff was constitutionally permissible.
Once the dog alerted on the vehicle, Officer Markley had probable cause to search the vehicle. Finding the bag gave him the basis to interrogate Mr. McCarty concerning the bag’s contents. Mr. McCarty’s statements about buying the bag and knowing the contents were stolen then gave Officer Markley probable cause for a warrantless arrest.
Officer Markley’s interrogation of Mr. McCarty was constitutional. He advised Mr. McCarty of his constitutional rights and did not apply unconstitutional coercion to obtain the statements.
Order
Mr. McCarty’s motion to suppress is denied.
SO ORDERED.
Thursday, June 03, 2010
Ohio Supreme Court decision: ‘Adam Walsh’ Provision Requiring Attorney General to Reclassify Sex Offenders Violates Separation of Powers
State v. Bodyke, Slip Opinion No. 2010-Ohio-2424.
Huron App. Nos. H-07-040, H-07-041, and H-07-042, 2008-Ohio-6387. Judgments of the court of appeals reversed.
Lundberg Stratton, O'Connor, and Lanzinger, JJ., concur.
Pfeifer, J., concurs in the syllabus and judgment.
O'Donnell, J., concurs in part and dissents in part.
Cupp, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2424.pdf
(June 3, 2010) In a narrowly tailored decision announced today, the Supreme Court of Ohio voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorize the state attorney general to reclassify sex offenders who had already been classified by judges under a previous version of the law, “Megan’s Law.” The Court held that the challenged provisions violate the separation-of-powers doctrine of the Ohio Constitution.
Today’s decision leaves in place all of the law enforcement registration and community notification requirements of the AWA applicable to sex offenders who were classified on or after the Jan. 1, 2008, effective date of that law, and reinstates the pre-AWA registration and community notification requirements that judges had ordered offenders to comply with pursuant to Megan’s Law.
In this case, Christian Bodyke, David Schwab and Gerald Phillips were separately convicted of sex-related crimes prior to 2007. Pursuant to the pre-AWA version of Ohio’s sex offender classification statute (known as Megan’s Law), the trial court in which they were convicted conducted a formal hearing in each case at which the judge reviewed factors enumerated in the statute and issued a final order assigning each of the offenders to a classification that imposed a duty of postrelease registration with the sheriff in their county of residence.
In 2007, the General Assembly enacted the AWA, which repealed the former Megan’s Law classification system and replaced it with a new statutory scheme in which persons convicted of sex crimes after the effective date of the act are categorized as Tier I, Tier II or Tier III offenders based solely on the offenses for which they were convicted. The AWA imposes new postrelease registration and community notification requirements for each tier of offenders that are more restrictive in most cases than the requirements imposed on similar offenders under Megan’s Law.
The 2007 legislation also includes provisions, codified in R.C. 2950.031 and 2950.032, that order the state attorney general to reclassify all sex offenders who had previously been classified by a court under the Megan’s Law scheme into one of the three new AWA tiers based solely on the crime for which they were convicted. The attorney general was ordered to notify these prior offenders that their reclassification would be effective Jan. 1, 2008, and that as of that date they would be subject to the new AWA registration and community notification requirements applicable to the tier of offenders into which they had been placed.
Bodyke, Schwab and Phillips received letters from the attorney general in November 2007 notifying them that pursuant to the AWA, as of Jan. 1, 2008, they would be reclassified as Tier III offenders and therefore subject to more stringent registration requirements and to community notification requirements to which they had not been subject under their judicially ordered classification under Megan’s Law. All three men appealed their reclassifications on various constitutional grounds to the 6th District Court of Appeals, which consolidated the cases for review. The 6th District rejected the appellants’ arguments, and affirmed their reclassification under the AWA as constitutional. Bodyke sought and was granted Supreme Court review of the 6th District’s decision.
Writing for a 5-1 majority of the Court in today’s decision, Justice Maureen O’Connor observed that, just as the judicial branch is bound by the constitution to faithfully apply the law as written by the legislature, the legislative and executive branches are barred by the constitution from enacting or enforcing laws that encroach on the powers of the judiciary.
In this case, she wrote: “The AWA’s provisions governing the reclassification of sex offenders already classified by judges under Megan’s Law violate the separation-of-powers doctrine for two related reasons: the reclassification scheme vests the executive branch with authority to review judicial decisions, and it interferes with the judicial power by requiring the reopening of final judgments. It is well settled that a legislature cannot enact laws that revisit a final judgment. We have held for over a century that ‘the Legislature cannot annul, reverse, or modify a judgment of a court already rendered ...’”
Citing the Supreme Court of Ohio’s 1902 decision in Gompf v. Wolfinger, Justice O’Connor wrote: “‘A judgment which is final by the laws existing when it is rendered cannot constitutionally be made subject to review by a statute subsequently enacted ...’ The reclassification scheme in the AWA works to ‘legislatively vacate the settled and journalized final judgments of the judicial branch of government.’ ... (T)he General Assembly cannot vest authority in the attorney general to reopen and revise the final decision of a judge classifying a sex offender.”
“The power to review and affirm, modify, or reverse other courts’ judgments is strictly limited to appellate courts (under) Section 3(B)(2), Article IV, Ohio Constitution. The AWA intrudes on that exclusive role and thus violates the separation-of-powers doctrine. Moreover, once the final judgment has been opened, the AWA requires that the attorney general ‘shall determine’ the new classifications of offenders and delinquent children who were classified by judges under the former statutes. ... In doing so, it violates a second prohibition by assigning to the executive branch the authority to revisit a judicial determination. ... Thus, we conclude that R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders who have already been classified by court order under former law, impermissibly instruct the executive branch to review past decisions of the judicial branch and thereby violate the separation-of-powers doctrine. We further conclude that R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders whose classifications have already been adjudicated by a court and made the subject of a final order, violate the separation-of-powers doctrine by requiring the opening of final judgments.”
The court’s decision also discussed an important legal doctrine, stare decisis, which provides that judges should follow prior, relevant precedent when deciding cases. Justice O’Connor, who authored the 2003 decision that announced the Ohio standard for overruling precedent, Galatis v. Westfield Insurance Co., clarified Ohio law on stare decisis in two important regards. First, quoting from this Court’s 1989 decision in Rocky River v. State Emp. Relations Bd., she reiterated the rule that ‘stare decisis applies to rulings rendered in regard to specific statutes, [but] it is limited to circumstances “where the facts of a subsequent case are substantially the same as a former case.”’ ... Noting that the AWA is substantially different from Megan’s Law, she concluded that the court’s prior decisions that had upheld that the constitutionality of Megan’s Law were not dispositive of Mr. Bodyke’s appeal, which involved a new statute, the AWA.
Second, Justice O’Connor wrote that “there is a more vital and compelling limitation on the doctrine as it has developed in Ohio: its inapplicability to constitutional claims.” Citing the Court’s decision in Rocky River, she noted that the Court then had acknowledged that stare decisis “does not apply with the same force and effect when constitutional interpretation is at issue.” She expressly stated in today’s opinion that “[n]othing in our decision in Galatis suggests otherwise. Rocky River retains its vitality, at least insofar as this principle is concerned: ‘Stare decisis is not inflexibly applicable to constitutional interpretation.’” Thus, as a result of today’s decision, “Stare decisis remains a controlling doctrine in cases presenting questions on the law of contracts, property, and torts, but it is not controlling in cases presenting a constitutional question.”
As the appropriate remedy for the separation of powers violations identified in today’s decision, the Court held that severance (deletion) of the reclassification provisions (R.C. 2950.031 and 2950.032) from the AWA while leaving the remainder of the statute in place would correct the constitutional defect identified by the Court without detracting from “the overriding objective of the General Assembly, i.e. to better protect the public from the recidivism of sex offenders.”
Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton and Judith Ann Lanzinger. Justice Paul E. Pfeifer concurred in the majority’s judgment and syllabus holding.
Justice Terrence O’Donnell entered a separate opinion in which he concurred with the portion of the majority opinion with respect to its decision on separation of powers, but dissented from any discussion of stare decisis, which garnered only three votes, because it is not necessary to the determination of the separation of powers issue.
He wrote: “We usually decline to rule on questions that are not necessary to a proper disposition of a case. ... Here, there is no actual controversy between the parties over how the doctrine of stare decisis should apply when the meaning of the Constitution is at issue, and any attempt to unnecessarily decide that question in this case contravenes well-settled law that this court will not issue advisory opinions. ... I am reminded of (U.S. Supreme Court) Chief Justice Roberts’s statement in PDK Laboratories, Inc. v. United States Drug Enforcement Adm.... where he wrote that the ‘the cardinal principle of judicial restraint [is that] if it is not necessary to decide more, it is necessary not to decide more ...’”
In a separate dissenting opinion, Justice Robert R. Cupp disagreed with the majority’s conclusion that the reclassification provisions of the AWA violate the separation of powers doctrine by empowering the attorney general to overturn or vacate the final judgments of state courts. He wrote that, in his view, the inclusion of Bodyke’s classification as a sexually oriented offender in the trial court’s judgment entry in his case did not elevate that classification to a “final judicial judgment” because the classification was required as a matter of law under the former Megan’s Law scheme as a collateral consequence of Bodyke’s conviction for sexual battery.
Justice Cupp noted that in enacting the AWA, the legislature repealed the former offender categories set forth in Megan’s Law and replaced them with the three tiers of the current classification system. He wrote: “Rather than burden the courts with sifting the hundreds or thousands of sex offenders to which new and different requirements apply, the General Assembly assigned that administrative task to an executive officer, the attorney general. For the reasons explained above, however, this task neither requires nor permits the attorney general to open, overturn, or otherwise disturb the final judgments of conviction and sentence of any offender.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
Jeffrey M. Gamso, 419.243.3800, for Christian Bodyke.
Russell V. Leffler, 419.668.8215, for the Huron County prosecutor’s office.
Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Huron App. Nos. H-07-040, H-07-041, and H-07-042, 2008-Ohio-6387. Judgments of the court of appeals reversed.
Lundberg Stratton, O'Connor, and Lanzinger, JJ., concur.
Pfeifer, J., concurs in the syllabus and judgment.
O'Donnell, J., concurs in part and dissents in part.
Cupp, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2424.pdf
(June 3, 2010) In a narrowly tailored decision announced today, the Supreme Court of Ohio voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorize the state attorney general to reclassify sex offenders who had already been classified by judges under a previous version of the law, “Megan’s Law.” The Court held that the challenged provisions violate the separation-of-powers doctrine of the Ohio Constitution.
Today’s decision leaves in place all of the law enforcement registration and community notification requirements of the AWA applicable to sex offenders who were classified on or after the Jan. 1, 2008, effective date of that law, and reinstates the pre-AWA registration and community notification requirements that judges had ordered offenders to comply with pursuant to Megan’s Law.
In this case, Christian Bodyke, David Schwab and Gerald Phillips were separately convicted of sex-related crimes prior to 2007. Pursuant to the pre-AWA version of Ohio’s sex offender classification statute (known as Megan’s Law), the trial court in which they were convicted conducted a formal hearing in each case at which the judge reviewed factors enumerated in the statute and issued a final order assigning each of the offenders to a classification that imposed a duty of postrelease registration with the sheriff in their county of residence.
In 2007, the General Assembly enacted the AWA, which repealed the former Megan’s Law classification system and replaced it with a new statutory scheme in which persons convicted of sex crimes after the effective date of the act are categorized as Tier I, Tier II or Tier III offenders based solely on the offenses for which they were convicted. The AWA imposes new postrelease registration and community notification requirements for each tier of offenders that are more restrictive in most cases than the requirements imposed on similar offenders under Megan’s Law.
The 2007 legislation also includes provisions, codified in R.C. 2950.031 and 2950.032, that order the state attorney general to reclassify all sex offenders who had previously been classified by a court under the Megan’s Law scheme into one of the three new AWA tiers based solely on the crime for which they were convicted. The attorney general was ordered to notify these prior offenders that their reclassification would be effective Jan. 1, 2008, and that as of that date they would be subject to the new AWA registration and community notification requirements applicable to the tier of offenders into which they had been placed.
Bodyke, Schwab and Phillips received letters from the attorney general in November 2007 notifying them that pursuant to the AWA, as of Jan. 1, 2008, they would be reclassified as Tier III offenders and therefore subject to more stringent registration requirements and to community notification requirements to which they had not been subject under their judicially ordered classification under Megan’s Law. All three men appealed their reclassifications on various constitutional grounds to the 6th District Court of Appeals, which consolidated the cases for review. The 6th District rejected the appellants’ arguments, and affirmed their reclassification under the AWA as constitutional. Bodyke sought and was granted Supreme Court review of the 6th District’s decision.
Writing for a 5-1 majority of the Court in today’s decision, Justice Maureen O’Connor observed that, just as the judicial branch is bound by the constitution to faithfully apply the law as written by the legislature, the legislative and executive branches are barred by the constitution from enacting or enforcing laws that encroach on the powers of the judiciary.
In this case, she wrote: “The AWA’s provisions governing the reclassification of sex offenders already classified by judges under Megan’s Law violate the separation-of-powers doctrine for two related reasons: the reclassification scheme vests the executive branch with authority to review judicial decisions, and it interferes with the judicial power by requiring the reopening of final judgments. It is well settled that a legislature cannot enact laws that revisit a final judgment. We have held for over a century that ‘the Legislature cannot annul, reverse, or modify a judgment of a court already rendered ...’”
Citing the Supreme Court of Ohio’s 1902 decision in Gompf v. Wolfinger, Justice O’Connor wrote: “‘A judgment which is final by the laws existing when it is rendered cannot constitutionally be made subject to review by a statute subsequently enacted ...’ The reclassification scheme in the AWA works to ‘legislatively vacate the settled and journalized final judgments of the judicial branch of government.’ ... (T)he General Assembly cannot vest authority in the attorney general to reopen and revise the final decision of a judge classifying a sex offender.”
“The power to review and affirm, modify, or reverse other courts’ judgments is strictly limited to appellate courts (under) Section 3(B)(2), Article IV, Ohio Constitution. The AWA intrudes on that exclusive role and thus violates the separation-of-powers doctrine. Moreover, once the final judgment has been opened, the AWA requires that the attorney general ‘shall determine’ the new classifications of offenders and delinquent children who were classified by judges under the former statutes. ... In doing so, it violates a second prohibition by assigning to the executive branch the authority to revisit a judicial determination. ... Thus, we conclude that R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders who have already been classified by court order under former law, impermissibly instruct the executive branch to review past decisions of the judicial branch and thereby violate the separation-of-powers doctrine. We further conclude that R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders whose classifications have already been adjudicated by a court and made the subject of a final order, violate the separation-of-powers doctrine by requiring the opening of final judgments.”
The court’s decision also discussed an important legal doctrine, stare decisis, which provides that judges should follow prior, relevant precedent when deciding cases. Justice O’Connor, who authored the 2003 decision that announced the Ohio standard for overruling precedent, Galatis v. Westfield Insurance Co., clarified Ohio law on stare decisis in two important regards. First, quoting from this Court’s 1989 decision in Rocky River v. State Emp. Relations Bd., she reiterated the rule that ‘stare decisis applies to rulings rendered in regard to specific statutes, [but] it is limited to circumstances “where the facts of a subsequent case are substantially the same as a former case.”’ ... Noting that the AWA is substantially different from Megan’s Law, she concluded that the court’s prior decisions that had upheld that the constitutionality of Megan’s Law were not dispositive of Mr. Bodyke’s appeal, which involved a new statute, the AWA.
Second, Justice O’Connor wrote that “there is a more vital and compelling limitation on the doctrine as it has developed in Ohio: its inapplicability to constitutional claims.” Citing the Court’s decision in Rocky River, she noted that the Court then had acknowledged that stare decisis “does not apply with the same force and effect when constitutional interpretation is at issue.” She expressly stated in today’s opinion that “[n]othing in our decision in Galatis suggests otherwise. Rocky River retains its vitality, at least insofar as this principle is concerned: ‘Stare decisis is not inflexibly applicable to constitutional interpretation.’” Thus, as a result of today’s decision, “Stare decisis remains a controlling doctrine in cases presenting questions on the law of contracts, property, and torts, but it is not controlling in cases presenting a constitutional question.”
As the appropriate remedy for the separation of powers violations identified in today’s decision, the Court held that severance (deletion) of the reclassification provisions (R.C. 2950.031 and 2950.032) from the AWA while leaving the remainder of the statute in place would correct the constitutional defect identified by the Court without detracting from “the overriding objective of the General Assembly, i.e. to better protect the public from the recidivism of sex offenders.”
Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton and Judith Ann Lanzinger. Justice Paul E. Pfeifer concurred in the majority’s judgment and syllabus holding.
Justice Terrence O’Donnell entered a separate opinion in which he concurred with the portion of the majority opinion with respect to its decision on separation of powers, but dissented from any discussion of stare decisis, which garnered only three votes, because it is not necessary to the determination of the separation of powers issue.
He wrote: “We usually decline to rule on questions that are not necessary to a proper disposition of a case. ... Here, there is no actual controversy between the parties over how the doctrine of stare decisis should apply when the meaning of the Constitution is at issue, and any attempt to unnecessarily decide that question in this case contravenes well-settled law that this court will not issue advisory opinions. ... I am reminded of (U.S. Supreme Court) Chief Justice Roberts’s statement in PDK Laboratories, Inc. v. United States Drug Enforcement Adm.... where he wrote that the ‘the cardinal principle of judicial restraint [is that] if it is not necessary to decide more, it is necessary not to decide more ...’”
In a separate dissenting opinion, Justice Robert R. Cupp disagreed with the majority’s conclusion that the reclassification provisions of the AWA violate the separation of powers doctrine by empowering the attorney general to overturn or vacate the final judgments of state courts. He wrote that, in his view, the inclusion of Bodyke’s classification as a sexually oriented offender in the trial court’s judgment entry in his case did not elevate that classification to a “final judicial judgment” because the classification was required as a matter of law under the former Megan’s Law scheme as a collateral consequence of Bodyke’s conviction for sexual battery.
Justice Cupp noted that in enacting the AWA, the legislature repealed the former offender categories set forth in Megan’s Law and replaced them with the three tiers of the current classification system. He wrote: “Rather than burden the courts with sifting the hundreds or thousands of sex offenders to which new and different requirements apply, the General Assembly assigned that administrative task to an executive officer, the attorney general. For the reasons explained above, however, this task neither requires nor permits the attorney general to open, overturn, or otherwise disturb the final judgments of conviction and sentence of any offender.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
Jeffrey M. Gamso, 419.243.3800, for Christian Bodyke.
Russell V. Leffler, 419.668.8215, for the Huron County prosecutor’s office.
Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Tuesday, May 04, 2010
The Ohio Supreme Court and Slavery in the 1800s
By Judge James L. Kimbler
Since its adoption into the Union, Ohio had always been a “free state”. Indeed, the territory that became Ohio, and four other states, had been designated as “free” of slavery in the Northwest Ordinance of 1787. The Ohio Constitution of 1802, which became the basis of Ohio’s government when it was admitted into the Union in 1803, asserted in its Bill of Rights that “…all men are born equally free and independent, and have certain natural, inherent and unalienable rights…”.
All of this meant that slavery was not recognized in Ohio and that there was not involuntary servitude unless it was a punishment for a crime. The fact that Ohio was a non-slave state did not mean, however, that Ohio courts didn’t struggle with legal issues raised by slavery.
Unlike the states found in New England, Ohio was a state that bordered on a “slave” state, Kentucky. One of Ohio’s biggest cities, Cincinnati, sat on the Ohio River across from Kentucky. This proximity to a slave state meant that Ohio courts had to deal with legal issues raised by slavery.
The legal issues raised by slavery included: whether a person could be convicted under a state statute that made it a crime to aid a runaway slave; whether a contract could be enforced that dealt with the selling of slaves; and, whether a writ of habeas corpus could issue against a sheriff who was holding a prisoner charged with violating the Fugitive Slave Act of 1850.
A review of these decisions reveals the limitations of a legal system that on the one hand didn’t constitutionally condone slavery; but, on the other hand, was called upon to decide questions that arose because slavery was permitted in other states. The reasoning used in these decisions reveals a legal system that was conflicted about slavery.
In some cases the Ohio Supreme Court thought itself free to apply Ohio law. When it could do so, it would apply the law in a way that undermined the institution of slavery. In other decisions, however, it felt itself bound by the United States Constitution. In those cases, unlike the decisions involving just Ohio law, the Court found itself reinforcing the institution of slavery.
InTom v. Dailey (1831), 4 Ohio 368. Tom was a young man who had been born in Kentucky. His mother at one point had been a slave, while his uncle, his mother’s brother, had been free. At one point his uncle had purchased his mother at an auction with the intention of emancipating her, or at least that is what he said. At the time of her emancipation she was pregnant with Tom.
Following Tom’s birth, however, his uncle maintained that the Tom had been born a slave and made plans to sell him to another, a man named Desha. When Tom’s mother heard of this intended sale, she sent Tom to Cincinnati to live with a man named Witt. It was Witt who brought the lawsuit seeking a declaration that Tom was free.
The Ohio Supreme Court held for Tom.
In the opinion syllabus it wrote the following:
“Where a slave is purchased under a promise to emancipate, such promise may be specifically executed in equity, against the purchaser, and against subsequent purchasers, without notice.”
In the body of the opinion, the Court appears outraged by the fact that Tom’s uncle had attempted to sell his nephew after telling his mother that she was freed. The Court cited to a Kentucky case for the principle that an oral agreement to emancipate a slave was sufficient. It then wrote the following:
“We surely may be permitted to apply these doctrines to a case where a brother is seeking to reduce his sister and her offspring to slavery, in direct violation of his repeated and most solemn engagements.” (Emphasis appears in the text).
In Birney v. State (1837), 8 Ohio 230, the Ohio Supreme Court reviewed the conviction of a defendant who had been convicted of violating a state law that made it a crime to harbor a runaway slave. The statute in effect at the time of the decision read, in part, as follows:
"...that if any person shall harbor or secrete any black or mulatto person, the property of another, the person so offending shall, on conviction thereof, be fined any sum not less than ten nor more than fifty dollars."
Birney argued that the statute was unenforceable because it did not require proof of scienter, that is, that the statute did not require the State to prove that he knew the person he was harboring was a slave. The Ohio Supreme Court agreed with him and reversed his conviction.
Although the Court reversed his conviction, it avoided having to address one of his arguments. Birney had argued that once a slave came into a free state, he or she became emancipated by operation of law. The Court specifically noted that it was not addressing any issue raised by Birney other than the fact that the indictment was defective.
By 1856 the Ohio Supreme Court was ready to address the issue of whether a slave who came into Ohio became emancipated by operation of law, at least in cases where the slave’s owner had permitted or required such entry.
In Anderson v. Poindexter (1856), 6 Ohio St. 622, the Ohio Supreme Court held that the holder of promissory notes that were given to purchase the freedom of a slave whose owner had allowed him to come into Ohio was not entitled to recover on the notes. In reaching this decision, the Ohio Supreme Court wrote the following in the opinion syllabus:
“Neither Ohio nor Kentucky can demand an abrogation of the Constitution and municipal laws of the other, as a matter of comity; and if a person, claimed as a slave in Kentucky, comes into Ohio by the direction or consent of his owner, to perform for him menial services here, even temporarily, the Constitution and laws of Ohio operate on the condition of such person, and effect his immediate emancipation.
There is no law, either in Kentucky or Ohio, by which a man, once free, can afterward be enslaved, except for the violation of some municipal law.”
In cases, however, where the Ohio Supreme Court was dealing with issues of Federal law, it found itself bound to reach a decision that reinforced the institution of slavery. This is shown by two habeas corpus cases where defendants who had been convicted under the Fugitive Slave Law of 1850 sought a hearing before an Ohio state court for a writ of habeas corpus.
This was shown in a case involving a man named Bushnell who was convicted of helping slaves escape. In the first case, Ex Parte Bushnell (1858), 8 Ohio St. 599, the Ohio Supreme Court held that Bushnell could not obtain a writ of habeas corpus because the Federal District Court had acquired jurisdiction. The Court put it this way in the opinion syllabus:
“Where a court of general jurisdiction, and legally competent to determine its own jurisdiction, has acquired jurisdiction, de facto, over person or subject matter, it is a rule, founded upon comity between judicial tribunals, that no other court will interfere with, or seek to arrest the action of the court in which, and while, the case is still pending and undetermined.”
Bushnell raised the argument that the Fugitive Slave Act was unconstitutional. The Ohio Supreme Court didn’t reach that issue since the case was still pending in the United States District Court when Bushnell applied for the writ.
After he was convicted, Bushnell again applied for a writ of habeas corpus. This time the Ohio Supreme Court considered the issue of the constitutionality of the Fugitive Slave Act. In the first paragraph of the opinion syllabus, the Court wrote the following:
“1. The provisions of Art. 4, Sec. 2, of the Constitution of the United States, that "no person held to service or labor in one state under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due," guaranties to the owner of an escaped slave the right of reclamation.” Ex Parte Bushnell (1859), 9 Ohio St. 77.
Thus, unlike the previous cases where the Ohio Supreme Court was applying its own law, in the Bushnell case the Ohio Supreme Court felt itself bound by both the United States Constitution and Federal law to refuse the writ of habeas corpus.
Like the United States itself, the Ohio Supreme Court on the cusp of the Civil War was conflicted about the legal status of slavery. Where it could use Ohio law to rule against the rights of slave owners, it would do so, but it felt itself bound by the United States Constitution to support the rights of slave owners under the Fugitive Slave Act. For the Ohio Supreme Court, as for the nation as a whole, the only way to resolve this conflict was by war and the subsequent adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution.
Since its adoption into the Union, Ohio had always been a “free state”. Indeed, the territory that became Ohio, and four other states, had been designated as “free” of slavery in the Northwest Ordinance of 1787. The Ohio Constitution of 1802, which became the basis of Ohio’s government when it was admitted into the Union in 1803, asserted in its Bill of Rights that “…all men are born equally free and independent, and have certain natural, inherent and unalienable rights…”.
All of this meant that slavery was not recognized in Ohio and that there was not involuntary servitude unless it was a punishment for a crime. The fact that Ohio was a non-slave state did not mean, however, that Ohio courts didn’t struggle with legal issues raised by slavery.
Unlike the states found in New England, Ohio was a state that bordered on a “slave” state, Kentucky. One of Ohio’s biggest cities, Cincinnati, sat on the Ohio River across from Kentucky. This proximity to a slave state meant that Ohio courts had to deal with legal issues raised by slavery.
The legal issues raised by slavery included: whether a person could be convicted under a state statute that made it a crime to aid a runaway slave; whether a contract could be enforced that dealt with the selling of slaves; and, whether a writ of habeas corpus could issue against a sheriff who was holding a prisoner charged with violating the Fugitive Slave Act of 1850.
A review of these decisions reveals the limitations of a legal system that on the one hand didn’t constitutionally condone slavery; but, on the other hand, was called upon to decide questions that arose because slavery was permitted in other states. The reasoning used in these decisions reveals a legal system that was conflicted about slavery.
In some cases the Ohio Supreme Court thought itself free to apply Ohio law. When it could do so, it would apply the law in a way that undermined the institution of slavery. In other decisions, however, it felt itself bound by the United States Constitution. In those cases, unlike the decisions involving just Ohio law, the Court found itself reinforcing the institution of slavery.
InTom v. Dailey (1831), 4 Ohio 368. Tom was a young man who had been born in Kentucky. His mother at one point had been a slave, while his uncle, his mother’s brother, had been free. At one point his uncle had purchased his mother at an auction with the intention of emancipating her, or at least that is what he said. At the time of her emancipation she was pregnant with Tom.
Following Tom’s birth, however, his uncle maintained that the Tom had been born a slave and made plans to sell him to another, a man named Desha. When Tom’s mother heard of this intended sale, she sent Tom to Cincinnati to live with a man named Witt. It was Witt who brought the lawsuit seeking a declaration that Tom was free.
The Ohio Supreme Court held for Tom.
In the opinion syllabus it wrote the following:
“Where a slave is purchased under a promise to emancipate, such promise may be specifically executed in equity, against the purchaser, and against subsequent purchasers, without notice.”
In the body of the opinion, the Court appears outraged by the fact that Tom’s uncle had attempted to sell his nephew after telling his mother that she was freed. The Court cited to a Kentucky case for the principle that an oral agreement to emancipate a slave was sufficient. It then wrote the following:
“We surely may be permitted to apply these doctrines to a case where a brother is seeking to reduce his sister and her offspring to slavery, in direct violation of his repeated and most solemn engagements.” (Emphasis appears in the text).
In Birney v. State (1837), 8 Ohio 230, the Ohio Supreme Court reviewed the conviction of a defendant who had been convicted of violating a state law that made it a crime to harbor a runaway slave. The statute in effect at the time of the decision read, in part, as follows:
"...that if any person shall harbor or secrete any black or mulatto person, the property of another, the person so offending shall, on conviction thereof, be fined any sum not less than ten nor more than fifty dollars."
Birney argued that the statute was unenforceable because it did not require proof of scienter, that is, that the statute did not require the State to prove that he knew the person he was harboring was a slave. The Ohio Supreme Court agreed with him and reversed his conviction.
Although the Court reversed his conviction, it avoided having to address one of his arguments. Birney had argued that once a slave came into a free state, he or she became emancipated by operation of law. The Court specifically noted that it was not addressing any issue raised by Birney other than the fact that the indictment was defective.
By 1856 the Ohio Supreme Court was ready to address the issue of whether a slave who came into Ohio became emancipated by operation of law, at least in cases where the slave’s owner had permitted or required such entry.
In Anderson v. Poindexter (1856), 6 Ohio St. 622, the Ohio Supreme Court held that the holder of promissory notes that were given to purchase the freedom of a slave whose owner had allowed him to come into Ohio was not entitled to recover on the notes. In reaching this decision, the Ohio Supreme Court wrote the following in the opinion syllabus:
“Neither Ohio nor Kentucky can demand an abrogation of the Constitution and municipal laws of the other, as a matter of comity; and if a person, claimed as a slave in Kentucky, comes into Ohio by the direction or consent of his owner, to perform for him menial services here, even temporarily, the Constitution and laws of Ohio operate on the condition of such person, and effect his immediate emancipation.
There is no law, either in Kentucky or Ohio, by which a man, once free, can afterward be enslaved, except for the violation of some municipal law.”
In cases, however, where the Ohio Supreme Court was dealing with issues of Federal law, it found itself bound to reach a decision that reinforced the institution of slavery. This is shown by two habeas corpus cases where defendants who had been convicted under the Fugitive Slave Law of 1850 sought a hearing before an Ohio state court for a writ of habeas corpus.
This was shown in a case involving a man named Bushnell who was convicted of helping slaves escape. In the first case, Ex Parte Bushnell (1858), 8 Ohio St. 599, the Ohio Supreme Court held that Bushnell could not obtain a writ of habeas corpus because the Federal District Court had acquired jurisdiction. The Court put it this way in the opinion syllabus:
“Where a court of general jurisdiction, and legally competent to determine its own jurisdiction, has acquired jurisdiction, de facto, over person or subject matter, it is a rule, founded upon comity between judicial tribunals, that no other court will interfere with, or seek to arrest the action of the court in which, and while, the case is still pending and undetermined.”
Bushnell raised the argument that the Fugitive Slave Act was unconstitutional. The Ohio Supreme Court didn’t reach that issue since the case was still pending in the United States District Court when Bushnell applied for the writ.
After he was convicted, Bushnell again applied for a writ of habeas corpus. This time the Ohio Supreme Court considered the issue of the constitutionality of the Fugitive Slave Act. In the first paragraph of the opinion syllabus, the Court wrote the following:
“1. The provisions of Art. 4, Sec. 2, of the Constitution of the United States, that "no person held to service or labor in one state under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due," guaranties to the owner of an escaped slave the right of reclamation.” Ex Parte Bushnell (1859), 9 Ohio St. 77.
Thus, unlike the previous cases where the Ohio Supreme Court was applying its own law, in the Bushnell case the Ohio Supreme Court felt itself bound by both the United States Constitution and Federal law to refuse the writ of habeas corpus.
Like the United States itself, the Ohio Supreme Court on the cusp of the Civil War was conflicted about the legal status of slavery. Where it could use Ohio law to rule against the rights of slave owners, it would do so, but it felt itself bound by the United States Constitution to support the rights of slave owners under the Fugitive Slave Act. For the Ohio Supreme Court, as for the nation as a whole, the only way to resolve this conflict was by war and the subsequent adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution.
Saturday, April 24, 2010
The Confrontation Clause and Pretrial Motions
By Judge James L. Kimbler
In an earlier note, I discussed whether the Ohio Rules of Evidence apply to pre-trial hearings on motions to suppress evidence. Ohio courts have held that it does not. As a result, a trial judge can consider evidence that would be objectionable at trial when ruling on a motion to suppress. Such evidence might well include hearsay evidence.
If a trial court does receive hearsay evidence at a pretrial hearing, has it violated the defendant's right to confront his or her accusers? That is, even if the Ohio Evidence Rules don't at hearing on motions to suppress, do the Confrontation Clause of the Ohio and Federal Constitutions prevent trial courts from considering hearsay evidence at such hearings?
Ohio courts have quoted language from United States Supreme Court decisions which refer to the right of confrontation as being a "trial right." An example is the following language from a decision of the Court of Appeals for the Ninth Appellate District on the issue of whether there is a right of confrontation at a hearing on a motion filed pursuant to Crim. R. 33:
"As for Cureton's arguments under the Crim.R. 33 motion, As for Cureton's arguments under the Crim.R. 33 motion, the Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him and the right to conduct cross-examination. Pennsylvania v. Ritchie (1987), 480 U.S. 39, 51, 94 L. Ed. 2d 40, 107 S. Ct. 989. "The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination." (Emphasis sic.) Id. at 52. Cureton has presented no authority that states his right to confront witnesses extends to a Crim.R. 33 hearing on a motion for a new trial."
(State v. Cureton, 2003 Ohio 6010 at P32)
In State v. Irwin, 2007 Ohio 4496, the Court of Appeals for the Seventh Appellate District wrote the following at P22:
"Appellant is correct that Crawford has a bearing on her assignment of error because Crawford, and the entire legal history of the confrontation clause, reveals the right of confrontation is a trial right."
Given the fact that at least two Ohio appellate courts have stated that the right of confrontation is a trial right, it would seem that the Confrontation Clause does not bar a trial court from receiving hearsay evidence at a hearing on a motion to suppress.
Whether, of course, a trial court would be persuaded by such evidence is another matter entirely.
In an earlier note, I discussed whether the Ohio Rules of Evidence apply to pre-trial hearings on motions to suppress evidence. Ohio courts have held that it does not. As a result, a trial judge can consider evidence that would be objectionable at trial when ruling on a motion to suppress. Such evidence might well include hearsay evidence.
If a trial court does receive hearsay evidence at a pretrial hearing, has it violated the defendant's right to confront his or her accusers? That is, even if the Ohio Evidence Rules don't at hearing on motions to suppress, do the Confrontation Clause of the Ohio and Federal Constitutions prevent trial courts from considering hearsay evidence at such hearings?
Ohio courts have quoted language from United States Supreme Court decisions which refer to the right of confrontation as being a "trial right." An example is the following language from a decision of the Court of Appeals for the Ninth Appellate District on the issue of whether there is a right of confrontation at a hearing on a motion filed pursuant to Crim. R. 33:
"As for Cureton's arguments under the Crim.R. 33 motion, As for Cureton's arguments under the Crim.R. 33 motion, the Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him and the right to conduct cross-examination. Pennsylvania v. Ritchie (1987), 480 U.S. 39, 51, 94 L. Ed. 2d 40, 107 S. Ct. 989. "The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination." (Emphasis sic.) Id. at 52. Cureton has presented no authority that states his right to confront witnesses extends to a Crim.R. 33 hearing on a motion for a new trial."
(State v. Cureton, 2003 Ohio 6010 at P32)
In State v. Irwin, 2007 Ohio 4496, the Court of Appeals for the Seventh Appellate District wrote the following at P22:
"Appellant is correct that Crawford has a bearing on her assignment of error because Crawford, and the entire legal history of the confrontation clause, reveals the right of confrontation is a trial right."
Given the fact that at least two Ohio appellate courts have stated that the right of confrontation is a trial right, it would seem that the Confrontation Clause does not bar a trial court from receiving hearsay evidence at a hearing on a motion to suppress.
Whether, of course, a trial court would be persuaded by such evidence is another matter entirely.
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