City of Euclid v. Heaton

238 N.E.2d 790, 15 Ohio St. 2d 65, 44 Ohio Op. 2d 50, 1968 Ohio LEXIS 374

• Court: Ohio Supreme Court
• Decided: June 19, 1968
• Docket: Nos. 41178, 41193, 41194 and 41228
• Status: Published

Opinions

Schneider, J.

In each of the two Dodge cases, it will be observed immediately that the Prosecuting Attorney initially raised no objection to the form or substance of the plea. Neither in the Court of Appeals nor in this court did he advance any argument directed to the merits of his dissatisfaction with the disposition of cause No. 41193 (indictment for murder in the first degree of defendant’s mother-in-law) by the three-judge court, confining his argument solely to the constitutionality of the so-called prosecutor’s appeal.

In cause No. 41194, he appealed only from the order of the trial court refusing to grant his motion “not to allow” the plea (of guilty to murder in the second degree to the indictment charging murder in the first degree) to which he had previously consented. No error was claimed, or “appeal” taken, from the disposition of the cause upon the plea by the single-judge court. It is self-evident that the Court of Appeals should have dismissed the proceedings forthwith, since the error, if any, had been consented to by the prosecutor. Instead of adhering to the rule binding it to refrain from deciding a constitutional question unless the necessity therefor arises (Greenhills Home Owners Corp. v. Greenhills, 5 Ohio St. 2d 207; 10 Ohio Jurisprudence 2d 195-201, inclusive) that court issued its opinion on the constitutional question, the substance of which has already been reported in the statement of facts, supra. In so doing, it indulged in the precise conduct which it held the General Assembly was powerless to impose upon it, that is, the decision of what, in fact, was a question academic to the actual case before it.

By our unanimous affirmance of the judgments in Dodge, however, we accomplish the same result as that reached by those judgments, but for the reasons already explained.

Two and one-half months later the same Court of Appeals, sitting in Allen County, decided Benjamin (No. 41228). The question there arose from the order of the trial court sustaining a “motion” which was equivalent to a demurrer to the indictment. That motion raised the issue of the sufficiency of the indictment. The defendant was not then, had never been, nor has yet to be in jeopardy on that indictment. Nevertheless, the Court of Appeals dismissed the appeal on constitutional grounds on the authority of Dodge, notwithstanding its syllabus in that case was limited to appeals in which jeopardy had attached, and notwithstanding the language of Section 2945.70, Revised Code, which excepts a “judgment of the trial court on its ruling on a motion to quash, a plea in abatement, a demurrer, or a motion in arrest of judgment,” from the mandate that (in proceedings pursuant to Sections 2945.67 to 2945.70, inclusive, Revised Code) a decision of the Court of Appeals shall not affect the judgment of the trial court in the cause and shall merely ‘ ‘ determine the law to govern in a similar ease.”

Obviously, the same reasoning set forth in the opinion of the Court of Appeals in Dodge supports our unanimous reversal of that court’s judgment in Benjamin, and that cause is remanded to the Court of Appeals for consideration on its merits. Regardless of the resolution of the meritorious question, the decision of the Court of Appeals may, and will, affect the judgment of the trial court. If the reviewing court finds no error in the proceedings of the trial court, i. e., that the indictment was insufficient, the judgment will be affirmed. Otherwise, if the indictment is sufficient the judgment of the trial court may, and should, be reversed and thence defendant may be brought to trial on the indictment. Hence, the Court of Appeals will have before it an actual, not a moot, question.

In the proceedings in the Court of Appeals on remand, counsel for the defendant, either of his own choosing or appointed for him by the trial court if he is indigent, should be notified and permitted to participate as a party-appellee, which, in fact, he is. If the trial judge fails to appoint counsel upon a showing of indigency of the defendant, he should be commanded to do so. If appointed due to the indigency of the defendant, counsel should be compensated for his services under Section 2941.51(B), Revised Code, by the appointing trial court.

We now pass to a disposition of Heaton (No. 41178), where the constitutionality of Sections 2945.67 to 2945.70, inclusive, Revised Code, is squarely presented. When that case was argued, and thereafter discussed by the court in conference, five members of the court, adopting the rationale of the Court of Appeals in its opinion in Dodge (10 Ohio App. 2d 92), concurred in the proposition that the statutes referred to are constitutionally inoperative to permit an “appeal” in a criminal case on behalf of the prosecutor from any judgment of a trial court not included within the exceptions enumerated in Section 2945.70, Revised Code. Judge Zimmerman dissented. The writer, whose views are set forth later herein, was, and remains, of the opinion that the controlling infirmity in the statutes is the failure to insure an adequate adversary proceeding on appeal, but that Heaton should be affirmed for the reason that the record therein clearly reveals that any such infirmity was, in fact, cured by the participation of the defendant throughout the case by counsel of her own selection. That participation was motivated by her very real interest in preserving the grounds for her acquittal as the law to govern her future conduct.

Therefore, in view of the constitutional provision in this state (Section 2, Article TV) then in effect, requiring “the concurrence of at least all but one of the judges” to reverse Heaton, the writer became, in effect, one of the “majority” of two and was assigned to prepare the opinion of the court resolving all four of the cases here reported.

At this time, however, we may judicially note that May 7, 1968, has passed; that at a special election held thereon, a majority of the electors voted in favor of an amendment to the Constitution proposed by the General Assembly under the authority of Section 1, Article XVI, thereof, one effect of which is to amend Section 2, Article TV, so as to delete the language requiring a six-judge concurrence to reverse the judgment in Heaton; and that the Secretary of State has canvassed the vote and confirmed the passage of said amendment.

Section 1, Article XVI, provides in this circumstance as follows: “If the majority of the electors voting on the same shall adopt such amendments the same shall become a part of the Constitution.”

I am constrained to concede, therefore, that the amendment became a part of the organic law of this state as of May 7,1968, and a majority of this court now has authority to reverse the judgment in Heaton on the basis of the reasoning which they have adopted and concurred in.

We also notice, of course, that in the resolution of the General Assembly proposing the amendment to the people, the following language appears:

“If adopted by a majority of the electors voting on this amendment, the amendment except paragraph (B) of the Schedule shall take effect January 10, 1970, and existing sections 1 and 2, and sections 3, 4, 6, 7, 8, 10, 12 and 14 of Article IV of the Constitution of Ohio shall be repealed from such effective date. Paragraph (B) of the Schedule and the repeal of sections 12 and 13 of Article XI adopted in 1851 shall become effective immediately upon the adoption of this amendment by the electors of this state.”

We note further that neither that language nor its substance was ordered to be placed upon the ballot and the language of the condensed text of the proposed amendment which, in fact, appeared thereon follows:

“Shall the Constitution of the state of Ohio be amended by amending Sections 1 and 2, enacting Sections 3, 4, 5 and 6 and repealing existing Sections 3, 4, 6, 7, 8, 10, 12 and 14 of Article IV and by repealing Sections 12 and 13 of Article II as adopted in 1851 to provide that the Supreme Court shall decide all cases Toy majority vote, to fix the power of the Supreme Court of Ohio to exercise administrative supervision over all courts and to make rules of practice and procedure, to prohibit the election or appointment to any judicial office of a person who shall have passed the age of 70 years, to equalize judges’ salaries and to allow increases in compensation during term, to remove the Probate Court as a constitutional court and to authorize the consolidation of county Probate Courts and Courts of Common Pleas?” (Emphasis supplied.)

The first paragraph of the syllabus in the case of State, ex rel. McNamara, v. Campbell, 94 Ohio St. 403, reads:

“A provision in a joint resolution of the General Assembly of Ohio, submitting to the electors of the state a proposed amendment to the Constitution, that the same shall not go into effect until a time later than that fixed by Section 1 of Article XVI of the Constitution, is inoperative and void, unless the proposition to postpone the taking effect of such proposed amendment beyond the time named in the Constitution is also submitted to the electors of the state and adopted by a majority of those voting on the proposition.”²

The foregoing is settled law in this state and the conclusion is inescapable that the constitutional amendment adopted by the voters on May 7,1968, became a part of our Constitution, effective as of that date.

See State, ex rel. Rodocker, v. Schroy (Ohio App.), 12 Ohio Opinions 173, 31 N. E. 2d 256, appeal dismissed, 134 Ohio St. 96. See, also, State, ex rel. Duffy, v. Sweeney, 152 Ohio St. 308, 312.

We note further that the following appears in a “Schedule” contained in the resolution of the General Assembly:

“Upon the effective date of this amendment:

“(A) Provision shall be made by law for the disposition of all pending cases in accordance with the procedural law in effect at the time of the effective date of this amendment.

“ (B) In accordance with the provisions of this Article, the- General Assembly shall enact such laws and the Supreme Court shall promulgate such rules as will give effect to the provisions herein.

“(C) All laws and rules of court in existence upon the effective date of this amendment shall continue in effect until superseded or changed in the manner authorized by this amendment.”

However, the former constitutional rule requiring the concurrence of six judges of the Supreme Court in a case of this kind, was not procedural but organic, substantive law, and it is manifest that the language quoted immediately above has reference to the language of new Section 5, Article IY of the Constitution, granting to the Supreme Court a “general superintendence over all courts in the state” through “rules promulgated by” it and the power to “prescribe rules governing practice and procedure in all courts of the state which rules shall not abridge, enlarge, or modify any substantive right,” the latter power to be exercised in conjunction with the General Assembly which has the opportunity to veto any such proposed rules before they may become effective.

Therefore, the decision of the Court of Appeals in Heaton (No. 41178) is reversed and held for naught, Zimmerman and Schneider, JJ., dissenting therefrom; Zimmerman, J., on the ground that Section 2945.67 et seq., Revised Code, are constitutional, and Schneider, J., on the ground that in Heaton those sections were not constitutionally inoperative.

"What follows constitutes solely the views of the writer.

I am not as disturbed by the incapacity of the Court of Appeals to pronounce an opinion of the law (which pronouncement may be ineffectual to alter the status of the defendant in a case where the problem arises solely in deference to, and as a result of, the attempt by the General Assembly to accommodate, the constitutional prohibition against double jeopardy) as I am by the curious provision in Section 2945.69, Revised Code, which lodges discretion in the trial judge, whose decision is sought to be reviewed, to appoint or not to appoint an attorney to serve as the adversary to the prosecution.

Furthermore, the archaic provision of the same statute limiting compensation of any appointed attorney to one hundred dollars is so out of touch with reality when viewed in the light of Section 2941.51, Revised Code (as amended in 131 Ohio Laws 680, allowing compensation not exceeding three hundred dollars and expenses [except in murder and manslaughter cases where no limit is imposed by statute] as the trial court may approve, plus compensation and expenses to be fixed by the Court of Appeals or the Supreme Court in a case where counsel has been assigned to maintain and conduct the defendant’s appeal), as to impede inherently any proceeding (where the defendant is unable to obtain counsel) under Sections 2945.67 to 2945.70, inclusive, Revised Code, from attaining an adversary character, the absence of which in a criminal appeal by the state is the real cause of its infirmity as a nonjudicial exertion.

Mr. Chief Justice Fuller, in explaining that the problem is not a want of jurisdiction, but one of the “objectionable consequences that would result from such an exercise of jurisdiction,” quoted with approval in United States v. Evans, 213 U. S. 297, 53 L. Ed. 803, 29 S. Ct. 507, the explanation of those consequences by the lower court: “ ‘The appellee in such case, having been freed from further prosecution by the verdict in his favor, has no interest in the question that may be determined in the proceedings on appeal and may not even appear. Nor can his appearance be enforced. Without opposing argument, which is so important to the attainment of a correct conclusion, the court is called upon to lay down rules that may be of vital interest to persons who may hereafter be brought to trial. All such persons are entitled to be heard on all questions affecting their rights, and it is a harsh rule that wouldi bind them by decisions made in what are practically “moot” cases where opposing views have not been presented.’ ” (Emphasis supplied.)

However, in Heaton, opposing views were presented in each court and at every stage of the proceeding and the defendant expressed a real interest in maintaining the basis for her acquittal as a guide to her future conduct.

While I am engaged about the business of rendering advice to the General Assembly, there is one final thought. Although conceding and defending the right of any one not to be placed twice in jeopardy, and rejecting the continuous jeopardy theory indulged by Wisconsin (see State v. Kennedy, 15 Wis. 2d 600, 113 N. W. 2d 372), I find no federal or Ohio constitutional right granted to any one to a continuing and subsisting judgment of acquittal or dismissal from a criminal charge procured hy, or resulting from, error, as distinguished from the right to a prompt disposal of a criminal charge, either by trial or dismissal. Therefore, what useful purpose is served by a statute (Section 2945.70, Revised Code) which limits the consequences of a review of a criminal case, in view not only of the statutory provisions for a plea of “once in jeopardy” (Sections 2943.03, 2943.05, 2943.06 and 2943.09, Revised Code), but of the constitutional provision against double jeopardy, which does not depend upon any statute for its vitality?

I am not to be read as saying what the General Assembly ought to do, for the choice belongs to it. But, if it desires to adopt an effective appellate procedure for the prosecution in criminal cases, it might choose to repeal outright Section 2945.70, Revised Code. Then, if a judgment of acquittal on review is held to be erroneous, that judgment would be reversed and thus affected by the judgment of the reviewing court. The Court of Appeals for Hancock County (and the majority of this court) could no longer, it would seem, conclude that in so affecting the judgment of the trial court, the decision of the reviewing court would be resolving an hypothetical question.

' The effect of the reversal of a judgment of acquittal would not be insubstantial. The accused would no longer have the benefit of the conclusive presumption of innocence, which is the effect of an acquittal. But why should he, if the proceedings leading to that conclusive presumption of innocence are fraught with error? Is it not enough if he is relegated to his mere presumption of innocence whose mantle of protection will continue to surround him to the end of his days and beyond, never to be resolved so long as the words, “no person shall be twice put in jeopardy for the same offense,” remain in our Constitution? At the same time, he will know, and the rest of the world may know, that that presumption has never rightfully been resolved in his favor.

And what is the importance of all of this? The Supreme Court of Nebraska, in State v. Hutter, 145 Neb. 798, 801, 18 N. W. 2d 203, after conceding that a ruling on the attorney general’s exceptions could in no way affect the judgment of acquittal rendered in the action, said:

* * Nevertheless, the statute [referring to the state’s appeal statute] is a beneficient one. This court is the final adjudicator of questions of criminal law and procedure, yet trial courts are continually deciding such questions from which the defendant does not appeal. The result is that such rulings lack uniformity throughout the various judicial districts of the state. And ofttimes criminals escape conviction through incorrect rulings of the trial court. All this can but tend to demoralize our criminal law system. The statute in question affords the means of securing uniformly correct rulings on similar propositions in future eases and in so doing adds stability and confidence to our criminal procedure.” See, also, State v. Wickett, 230 Iowa 1182, 300 N. W. 268, and Commonwealth v. Ramey, 279 Ky. 810, 132 S. W. 2d 342.

In case No. 41178, decision reversed.

In case Nos. 41193 and 41194, judgments affirmed.

In case No. 41228, judgment reversed.

Matthias, O’Neill, Herbert and Brown, JJ., concur in the syllabus and judgments. Zimmerman and Schneider, JJ., concur only in paragraphs one, two and three of the syllabus and in the judgments in case Nos. 41193, 41194 and 41228.

2 The, court pointed out (94 Ohio St. 403, 411) that in that case “all that was submitted to the people was: ‘Article XV, Section 4. Eligibility of women to appointment as members of boards of, or positions in, department and institutions affecting, or caring for, women and children.’ ” This was the language which the General Assembly suggested to be, and was, in fact, placed on the ballot. Obviously, that ballot language did not contain the purported effective date of January 1, 1914. See House Joint Resolution No. 41 (103 Ohio Laws 992), which reads as follows:

“Be it resolved by the General Assembly of the State of Ohio: Three-fifths of the members elected to each house concurring therein: That for the purpose of procuring the eligibility of women to certain offices, a proposal shall be submitted to the electors of this state in the manner provided by law, on the first Tuesday after the first Monday in November, 1913, to amend the Constitution of the state by amending Article XV, Section 4, thereof so that it will read as follows:

“Sec. 4. No person shall be elected or appointed to any office in this state unless possessed of the qualifications of an elector; provided that women who are citizens may be appointed as members of boards of, or to positions in, those departments and institutions established by the state or any political subdivision thereof involving the interests or care of women or children or both.

“Section 2. At such election this amendment shall be placed on the official ballot in the manner prescribed by law as ‘ARTICLE XV, SECTION 4, — ELIGIBILITY OF WOMEN TO APPOINTMENT AS MEMBERS OF BOARDS OF, OR POSITIONS IN, DEPARTMENT AND INSTITUTIONS AFFECTING, OR CARING FOR, WOMEN AND CHILDREN.’, or in other language sufficient to clearly designate it, and if a majority of the electors voting on the same shall adopt such amendment, Section h hereinabove set forth shall on and after the first day of January, 19H, become and constitute the section so amended of Article XV of the Constitution of the state of Ohio and said original Section 4 shall be repealed and annulled.” (Emphasis supplied.)

Curiously, the court made no reference to the fact that the resolution, as quoted above, constituted, along with the certificate of the Secretary of State, the entire publication of the proposed amendment as required then and now by Section 1, Article XVI.

The records of the office of the Secretary of State are silent on this question, but a search of the newspaper archives of the Public Library of Cincinnati and Hamilton County confirms that such publication was, in fact, made in such form.