[Cite as Dayton v. Galluzzo, 2014-Ohio-4854.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
CITY OF DAYTON :
Plaintiff-Appellee : C.A. CASE NO. 25913
v. : T.C. NO. 13TRD712
MICHAEL A. GALLUZZO : (Criminal appeal from Municipal Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 31st day of October , 2014.
ANDREW D. SEXTON, Atty. Reg. No. 0070892, Assistant City Prosecutor, 335 W. Third Street, Rm 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
MICHAEL A. GALLUZZO, P. O. Box 710, St. Paris, Ohio 43072 Defendant-Appellant
.......... 2
FROELICH, P.J.
{¶ 1} Michael A. Galluzzo appeals from a judgment of the Dayton
Municipal Court, which found him guilty of a turn signal violation and fined him $100. For
the following reasons, the judgment of the trial court will be affirmed.
{¶ 2} On January 12, 2013, Galluzzo was cited for failure to signal a left turn
from East Fifth Street onto Wright Avenue in the City of Dayton, a minor misdemeanor.
He was ordered to appear in the Dayton Municipal Court on January 22, 2013. At that time,
Galluzzo “demurred”; the magistrate entered a not guilty plea on his behalf (an act to which
Galluzzo objected) and set the matter for trial. Galluzzo subsequently filed a written
Demurrer, citing the Uniform Commercial Code; he also requested several continuances and
documents related to his case. On April 1, 2013, Galluzzo filed a Memorandum in Support
of Demurrer and Counterclaim.
{¶ 3} On April 3, 2013, a trial was held before a magistrate, and Galluzzo was
found guilty of a turn signal violation. He was fined $100 and ordered to pay court costs.
Galluzzo requested findings of fact and conclusions of law, which the magistrate entered on
May 10, 2013. Galluzzo filed objections to the magistrate’s decision, which were overruled
by the trial court on August 14, 2013. In numerous filings with the court before and after
his conviction, Galluzzo asserted that the municipal court lacked jurisdiction and had
violated his due process rights. The trial court’s judgment rejected these claims.
{¶ 4} Galluzzo appeals from the trial court’s judgment, raising one assignment of
error. In his brief, he asserts that the trial court erred in denying his demurrer without a
hearing and committed plain error in not establishing its jurisdiction before trial. He refers 3
to the municipal court as a “corporate court” and to the City of Dayton as a “corporate
institution.” In this context, he claims that the City may only regulate corporate or business
activity, and that it failed to establish that he was engaged in such an activity or was “subject
to regulation under motor vehicle codes.” He asserts that he “can only be regulated by his
own conscience” and that his case should have been dismissed. Galluzzo claims that, as a
“sovereign” being, he “is not subject to the corporate rules and ordinances of the City of
Dayton.”
{¶ 5} We begin with Galluzzo’s argument about demurrer. In another case in
which Galluzzo appealed his conviction of a traffic violation (expired vehicle registration),
we recently addressed his argument that the trial court erred in denying his demurrer and in
failing to hold a hearing thereon. St. Paris v. Galluzzo, 2d Dist. Champaign No.
2014-CA-4, 2014-Ohio-3260 (“Galluzzo I”). In that case, as in this one, Galluzzo relied on
R.C. 2941.57 and R.C. 2941.62, and the prosecution argued that common law demurrer had
been abolished by Crim.R. 12(A). We stated:
* * * Galluzzo contends that he has the right to file a common law
demurrer to the charges. In support, he cites R.C. 2941.57, which permits
demurrers to indictments, and R.C. 2941.62, which requires a hearing
thereon. The prosecution contends that demurrers were abolished by Crim.R.
12(A).
While Crim.R. 12(A) does abolish demurrers, it is not applicable in
this case. The Ohio Traffic Rules apply to all matters involving the
“violations of a law, ordinance, or regulation governing the operation and use 4
of vehicles.” Crim.R. 1(C)(3); Traf.R. 1(A) and 2(A). Traf.R. 11 is the
equivalent of Crim.R. 12(A), relating to pleadings and motions before plea
and trial. While it does not specifically abolish demurrers, it does not mention
demurrers as permissible pleadings. Traf.R. 11(A). In any event, demurrers
“were previously abolished in misdemeanor cases by R.C. 2937.04, and
exceptions to the complaint that could have been made thereunder were
consolidated into a motion to dismiss the complaint.” 2 Katz & Giannelli,
Criminal Law, Section 47.2, fn. 2 (2009). We conclude that the trial court
did not err in striking the demurrer.
Galluzzo I at ¶ 9-10.
{¶ 6} We affirm our holding in Galluzzo I that demurrers have been
abolished in traffic cases. Moreover, even if we were to construe Galluzzo’s demurrer as a
motion to dismiss the complaint against him, we would find that the trial court properly
denied the motion, for the reasons set forth below.
{¶ 7} Next, Galluzzo argues that the trial court lacked personal jurisdiction over
him in the absence of his consent to such jurisdiction. He asserts that a natural person
cannot be bound by statutes or the will of the legislature without his or her consent, “but is
bound by a higher law, that being ‘Common Law,’ the ‘law of the land.’”
{¶ 8} R.C. 1901.02(A) confers jurisdiction upon the Dayton Municipal Court for
misdemeanors occurring within its territorial boundaries. In Galluzzo I, we explained:
The judicial power of the state is vested in “such other courts inferior
to the supreme court as may from time to time be established by law.” 5
Section 1, Article IV, Ohio Constitution. The constitution gives the General
Assembly the power to provide for municipal courts and their jurisdiction.
Behrle v. Beam, 6 Ohio St.3d 41, 42, 451 N.E.2d 237 (1983). Municipal
courts, as they exist today in Ohio, were established in 1951 with the
enactment of R.C. Chapter 1901. Id.[;] State v. Spartz, 12th Dist. Madison
No. CA99-11-026, 2000 WL 204280, * 1 (Feb. 22, 2000).
Generally, all Ohio courts have jurisdiction over violations of Ohio
law occurring in Ohio. See R.C. 2901.11(A). More to the point, municipal
courts have jurisdiction over misdemeanor offenses.
Pursuant to R.C.1901.20, “The municipal court has jurisdiction of the
violation of any ordinance of any municipal corporation within its territory *
* * and of the violation of any misdemeanor committed within the limits of
its territory.”
***
The Ohio Constitution Section 3, [A]rt. 18, provides:
“Municipalities shall have authority to exercise all powers of local
self-government and to adopt and enforce within their limits such
local police, sanitary and other similar regulations, as are not in
conflict with general laws.” The Ohio Supreme Court in Village of
Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. [ ] 519 (1923) noted “
* * * by virtue of [S]ection 3, [A]rt. 18, of the Ohio Constitution, as
amended in 1912, municipalities of the state have police power 6
directly conferred by the people in all matters of local self-government
* * *.” Id. at 267, 140 N.E. [ ] 520-521. “Promptly after the
establishment of home rule in Ohio, municipal control over municipal
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[Cite as Dayton v. Galluzzo, 2014-Ohio-4854.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
CITY OF DAYTON :
Plaintiff-Appellee : C.A. CASE NO. 25913
v. : T.C. NO. 13TRD712
MICHAEL A. GALLUZZO : (Criminal appeal from Municipal Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 31st day of October , 2014.
ANDREW D. SEXTON, Atty. Reg. No. 0070892, Assistant City Prosecutor, 335 W. Third Street, Rm 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
MICHAEL A. GALLUZZO, P. O. Box 710, St. Paris, Ohio 43072 Defendant-Appellant
.......... 2
FROELICH, P.J.
{¶ 1} Michael A. Galluzzo appeals from a judgment of the Dayton
Municipal Court, which found him guilty of a turn signal violation and fined him $100. For
the following reasons, the judgment of the trial court will be affirmed.
{¶ 2} On January 12, 2013, Galluzzo was cited for failure to signal a left turn
from East Fifth Street onto Wright Avenue in the City of Dayton, a minor misdemeanor.
He was ordered to appear in the Dayton Municipal Court on January 22, 2013. At that time,
Galluzzo “demurred”; the magistrate entered a not guilty plea on his behalf (an act to which
Galluzzo objected) and set the matter for trial. Galluzzo subsequently filed a written
Demurrer, citing the Uniform Commercial Code; he also requested several continuances and
documents related to his case. On April 1, 2013, Galluzzo filed a Memorandum in Support
of Demurrer and Counterclaim.
{¶ 3} On April 3, 2013, a trial was held before a magistrate, and Galluzzo was
found guilty of a turn signal violation. He was fined $100 and ordered to pay court costs.
Galluzzo requested findings of fact and conclusions of law, which the magistrate entered on
May 10, 2013. Galluzzo filed objections to the magistrate’s decision, which were overruled
by the trial court on August 14, 2013. In numerous filings with the court before and after
his conviction, Galluzzo asserted that the municipal court lacked jurisdiction and had
violated his due process rights. The trial court’s judgment rejected these claims.
{¶ 4} Galluzzo appeals from the trial court’s judgment, raising one assignment of
error. In his brief, he asserts that the trial court erred in denying his demurrer without a
hearing and committed plain error in not establishing its jurisdiction before trial. He refers 3
to the municipal court as a “corporate court” and to the City of Dayton as a “corporate
institution.” In this context, he claims that the City may only regulate corporate or business
activity, and that it failed to establish that he was engaged in such an activity or was “subject
to regulation under motor vehicle codes.” He asserts that he “can only be regulated by his
own conscience” and that his case should have been dismissed. Galluzzo claims that, as a
“sovereign” being, he “is not subject to the corporate rules and ordinances of the City of
Dayton.”
{¶ 5} We begin with Galluzzo’s argument about demurrer. In another case in
which Galluzzo appealed his conviction of a traffic violation (expired vehicle registration),
we recently addressed his argument that the trial court erred in denying his demurrer and in
failing to hold a hearing thereon. St. Paris v. Galluzzo, 2d Dist. Champaign No.
2014-CA-4, 2014-Ohio-3260 (“Galluzzo I”). In that case, as in this one, Galluzzo relied on
R.C. 2941.57 and R.C. 2941.62, and the prosecution argued that common law demurrer had
been abolished by Crim.R. 12(A). We stated:
* * * Galluzzo contends that he has the right to file a common law
demurrer to the charges. In support, he cites R.C. 2941.57, which permits
demurrers to indictments, and R.C. 2941.62, which requires a hearing
thereon. The prosecution contends that demurrers were abolished by Crim.R.
12(A).
While Crim.R. 12(A) does abolish demurrers, it is not applicable in
this case. The Ohio Traffic Rules apply to all matters involving the
“violations of a law, ordinance, or regulation governing the operation and use 4
of vehicles.” Crim.R. 1(C)(3); Traf.R. 1(A) and 2(A). Traf.R. 11 is the
equivalent of Crim.R. 12(A), relating to pleadings and motions before plea
and trial. While it does not specifically abolish demurrers, it does not mention
demurrers as permissible pleadings. Traf.R. 11(A). In any event, demurrers
“were previously abolished in misdemeanor cases by R.C. 2937.04, and
exceptions to the complaint that could have been made thereunder were
consolidated into a motion to dismiss the complaint.” 2 Katz & Giannelli,
Criminal Law, Section 47.2, fn. 2 (2009). We conclude that the trial court
did not err in striking the demurrer.
Galluzzo I at ¶ 9-10.
{¶ 6} We affirm our holding in Galluzzo I that demurrers have been
abolished in traffic cases. Moreover, even if we were to construe Galluzzo’s demurrer as a
motion to dismiss the complaint against him, we would find that the trial court properly
denied the motion, for the reasons set forth below.
{¶ 7} Next, Galluzzo argues that the trial court lacked personal jurisdiction over
him in the absence of his consent to such jurisdiction. He asserts that a natural person
cannot be bound by statutes or the will of the legislature without his or her consent, “but is
bound by a higher law, that being ‘Common Law,’ the ‘law of the land.’”
{¶ 8} R.C. 1901.02(A) confers jurisdiction upon the Dayton Municipal Court for
misdemeanors occurring within its territorial boundaries. In Galluzzo I, we explained:
The judicial power of the state is vested in “such other courts inferior
to the supreme court as may from time to time be established by law.” 5
Section 1, Article IV, Ohio Constitution. The constitution gives the General
Assembly the power to provide for municipal courts and their jurisdiction.
Behrle v. Beam, 6 Ohio St.3d 41, 42, 451 N.E.2d 237 (1983). Municipal
courts, as they exist today in Ohio, were established in 1951 with the
enactment of R.C. Chapter 1901. Id.[;] State v. Spartz, 12th Dist. Madison
No. CA99-11-026, 2000 WL 204280, * 1 (Feb. 22, 2000).
Generally, all Ohio courts have jurisdiction over violations of Ohio
law occurring in Ohio. See R.C. 2901.11(A). More to the point, municipal
courts have jurisdiction over misdemeanor offenses.
Pursuant to R.C.1901.20, “The municipal court has jurisdiction of the
violation of any ordinance of any municipal corporation within its territory *
* * and of the violation of any misdemeanor committed within the limits of
its territory.”
***
The Ohio Constitution Section 3, [A]rt. 18, provides:
“Municipalities shall have authority to exercise all powers of local
self-government and to adopt and enforce within their limits such
local police, sanitary and other similar regulations, as are not in
conflict with general laws.” The Ohio Supreme Court in Village of
Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. [ ] 519 (1923) noted “
* * * by virtue of [S]ection 3, [A]rt. 18, of the Ohio Constitution, as
amended in 1912, municipalities of the state have police power 6
directly conferred by the people in all matters of local self-government
* * *.” Id. at 267, 140 N.E. [ ] 520-521. “Promptly after the
establishment of home rule in Ohio, municipal control over municipal
streets was clearly enunciated. Billings v. Cleveland Ry. Co., 92
Ohio St. 478, 111 N.E. 155 (1915).” State v. Parker, 68 Ohio St.3d
283-284, 626 N.E.2d 106, 107 (1994). In Parker the Court reiterated
“ * * * a municipality’s authority to regulate traffic comes from the
Ohio Constitution * * * .” Id. at 285, 626 N.E.2d at 108.
Galluzzo I at ¶ 11, quoting Mount Vernon v. Young, 5th Dist. Knox No. 2005CA45,
2006-Ohio-3319, ¶ 54-58.
{¶ 9} There is no question that the Dayton Municipal Court had
jurisdiction over Galluzzo for committing a traffic offense within its territorial
jurisdiction.
{¶ 10} Additionally, we are unpersuaded by Galluzzo’s assertion that his
driving was not subject to regulation, because he was not engaged in a commercial or
business enterprise. This issue was also addressed in Young, which stated:
“In Ohio, a license to operate a motor vehicle is a privilege, and
not an absolute property right.” Doyle v. Ohio Bur. of Motor Vehicles
(1990), 51 Ohio St.3d 46, 554 N.E.2d 97, paragraph two of the syllabus.
In fact, it is not a substantial private interest, but a state-regulated
privilege. Maumee v. Gabriel (1988), 35 Ohio St.3d 60, 63, 518 N.E.2d
558, 561; State v. Uskert, 85 Ohio St.3d 593, 599, 1999-Ohio-289, 709 7
N.E.2d 1200, 1204. To be privileged to operate a motor vehicle in
Ohio one must conform to the requirements of law which establish that
privilege. Hill v. Harris (Hamilton C.P., 1948), 54 Ohio Law Abs.
391, 87 N .E.2d 97, 102.
“The owner of such a license holds it subject to reasonable regulation.
His interest in the highway is common to that of every other user for whom
the highways are constructed and there must be reasonable regulations to
require or guide him in the use of them subject to the privilege of every other
citizen to use them for the same purpose. If he cannot demean himself as a
careful user, considerate of the right of others to do likewise, he becomes a
public nuisance and should be excluded temporarily or permanently from
their use. In this holding we do not overlook the right and liberty of
appellant to use the highways as guaranteed by the Bill of Rights. At the
same time none of these liberties are absolutes but all may be regulated in the
public interest. It would produce an intolerable situation on the public
highways to subscribe to a theory that they could not be summarily regulated
in the interest of the public.” Thomhill v. Kirkman (Fla., 1953), 62 So.2d 740.
Young at ¶ 61-62. See also State v. Gunnell, 10th Dist. Franklin No. 13AP-90,
2013-Ohio-3928, ¶ 13 (holding that there is no fundamental right to drive a motor vehicle).
{¶ 11} R.C. 1901.02 confers jurisdiction to the Dayton Municipal Court for
misdemeanors occurring within the City’s boundaries. Galluzzo did not refute the City’s 8
evidence that he committed a turn signal violation within the City of Dayton, in violation of
R.C.G.O. 71.31. Thus, the Dayton Municipal Court had jurisdiction over the violation of
the City’s ordinance.
{¶ 12} Because we have rejected Galluzzo’s procedural and jurisdictional
arguments, his assignment of error is overruled.
{¶ 13} The judgment of the trial court will be affirmed.
FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
Andrew D. Sexton Michael A. Galluzzo Hon. John S. Pickrel