City of Cleveland v. Bergman

748 N.E.2d 1214, 111 Ohio Misc. 2d 16, 2001 Ohio Misc. LEXIS 5
CourtCity of Cleveland Municipal Court
DecidedJanuary 29, 2001
DocketNo. 2000 CRB 049411
StatusPublished

This text of 748 N.E.2d 1214 (City of Cleveland v. Bergman) is published on Counsel Stack Legal Research, covering City of Cleveland Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Cleveland v. Bergman, 748 N.E.2d 1214, 111 Ohio Misc. 2d 16, 2001 Ohio Misc. LEXIS 5 (Ohio Super. Ct. 2001).

Opinion

Ronald B. Adeine, Judge.

This matter came on for hearing on the defendant’s Crim.R. 12(B) motion to dismiss the complaint filed against him on constitutional grounds.

This court first notes that there is a strong presumption of constitutionality for enactments of the legislature. State v. Anderson (1991), 57 Ohio St.3d 168, 171, 566 N.E.2d 1224, 1226. In order to prevail, therefore, the party challenging a legislative enactment on constitutional grounds must overcome that presumption. Id.

With that caveat in mind, the court turns to the argument brought forward by the defendant, Alan Bergman, in support of the motion now under consideration. The gravamen of the defendant’s argument is that the term “cohabitation” used [18]*18in the definition of “family or household member” — one of the elements of the charge of domestic violence under R.C. 2919.25(C) — is unconstitutionally vague, as it is applied to him.

The defendant maintains that he and the complainant were never married ceremonially. He also insists that they were never married under the common law and that they are not the parents of any children in common. As a result, he argues, the only possible definition of “family or household member” found in the domestic violence statute that might be applied to him defines a “person living as a spouse” as “a person who * * * otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date .of the alleged commission of the act in question.” (Emphasis added.) R.C. 2919.25(E)(1)(a) and (2).

It is the defendant’s position that the term, “cohabitation,” as drafted by the legislature in R.C. 2919.25(E)(2), and as interpreted by the Ohio Supreme Court, is so broad “that it is impossible to ascertain whether the evidence [that the city would produce to support the charge before the bench], whether voluminous or not, [would] be of any probative value on this uncertain term,” and that, therefore, the charge itself cannot stand.

The defendant concedes that the Supreme Court of Ohio has defined the term “cohabitation” in its landmark decision in the lead case of State v. Williams (1997), 79 Ohio St.3d 459, 465, 683 N.E.2d 1126, 1130. However, he maintains that the Supreme Court decided that case on other grounds, specifically in an effort to resolve “weight and sufficiency” issues that had arisen in approximately ten appellate court cases from around the state, which had resulted in divergent conclusions. According to the defendant, a review of the “vagueness” issue presented here is one of first impression.

This court’s research confirms that the defendant is correct in that assertion. We were unable to find a single Ohio opinion, and, in fact, a single opinion by any court nationally, that has addressed the issue of the constitutional vagueness of the term “cohabitation” in a context substantially similar to the one raised here.

Fortunately, however, the Supreme Court of Ohio has provided this state’s courts with direction for addressing situations involving criminal enactments of the legislative authority that contain ambiguous language.

The case of State v. Reeder (1985), 18 Ohio St.3d 25, 18 OBR 21, 479 N.E.2d 280, presented a situation not unlike the one now before this court. Reeder was charged with a violation of Ohio’s disorderly conduct statute, R.C. 2917.11(A)(1). That statute states:

“(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following:
[19]*19“(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.”

The trial court in that case found Reeder guilty of disorderly conduct, noting “that [the defendant] at least acted ‘recklessly]’ and that his conduct ‘at the very least, [was] turbulent.’ ” Reeder at 25, 18 OBR at 21, 479 N.E.2d at 281.

As in the instant case, the challenge in Reeder was specifically aimed at that portion of the statute that the defendant maintained vaguely, and, thus, unconstitutionally, prohibited certain behavior. He argued that the term “turbulent” was subject to multiple meanings and interpretations and that a person of ordinary intelligence and understanding was unable to ascertain which of those meanings and interpretations the legislature intended to prohibit when it enacted the statute. Reeder, swpra.

The Allen County Court of Appeals agreed with the defendant’s contention, finding that the disorderly conduct statute was unconstitutionally vague. That court had previously held that “ ‘ “the term ‘turbulent behavior’ [was] not sufficiently definite to inform those of common intelligence of the point at which their conduct becomes impermissible and a violation of the [statute] * * ’ Findlay v. Zink (Aug. 5, 1980), Hancock App. No. 5-79-35, unreported, at 5.” Reeder at 26, 18 OBR at 22, 479 N.E.2d at 281. Reeder’s conviction was, therefore, reversed. The prosecution, however, appealed to the Ohio Supreme Court, which accepted the case for review.

The Supreme Court’s reasoning in Reeder is extremely useful in sorting out the equities of the case at bar. In reversing the court of appeals’ decision and reinstating the judgment of the trial court, the Ohio Supreme Court held that when determining whether a statute is unconstitutionally vague, “ ‘[impossible standards of specificity are not required. * * * The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ Jordan v. De George (1951), 341 U.S. 223, 231-232 [71 S.Ct. 703, 708, 95 L.Ed. 886, 892-893].” Reeder at 26, 18 OBR at 22, 479 N.E.2d at 282. “The courts * * * will assume [that] the legislature is using a word in its ordinary meaning and our task is to accord ‘ * * * its common, ordinary and usually accepted meaning in the connection in which it is used * * *.’ Mutual Bldg. & Invest. Co. v. Efros (1949), 152 Ohio St. 369 [40 O.O 389, 89 N.E.2d 648], paragraph one of the syllabus. See, also, Youngstown Club v. Porterfield (1970), 21 Ohio St.2d 83, 86 [50 O.O.2d 198, 200, 255 N.E.2d 262, 264].” Reeder, 18 Ohio St.3d at 26-27, 18 OBR at 22, 479 N.E.2d at 282. “In determining whether a statute fairly informs a reasonable person of what is prohibited, courts should consider the challenged phrase in the context it is used in the law, and not as it stands alone.” Reeder at 27, 18 OBR at 22, 479 N.E.2d at 282.

[20]*20Further, the Reeder court, citing the United States Supreme Court, set forth the objective that courts should seek in applying the vagueness doctrine to the language employed in challenged criminal laws. It noted that the Supreme Court has held that “ ‘the root of the vagueness doctrine is a rough idea of fairness.

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Related

Jordan v. De George
341 U.S. 223 (Supreme Court, 1951)
Colten v. Kentucky
407 U.S. 104 (Supreme Court, 1972)
Mutual Building & Investment Co. v. Efros
89 N.E.2d 648 (Ohio Supreme Court, 1949)
Youngstown Club v. Porterfield
255 N.E.2d 262 (Ohio Supreme Court, 1970)
State v. Reeder
479 N.E.2d 280 (Ohio Supreme Court, 1985)
State v. Anderson
566 N.E.2d 1224 (Ohio Supreme Court, 1991)
State v. Williams
683 N.E.2d 1126 (Ohio Supreme Court, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
748 N.E.2d 1214, 111 Ohio Misc. 2d 16, 2001 Ohio Misc. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-cleveland-v-bergman-ohmunictclevela-2001.