Holderman v. Columbus Skyline Securities, Inc.

74 Ohio St. 3d 495
CourtOhio Supreme Court
DecidedFebruary 14, 1996
DocketNo. 94-1445
StatusPublished
Cited by39 cases

This text of 74 Ohio St. 3d 495 (Holderman v. Columbus Skyline Securities, Inc.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holderman v. Columbus Skyline Securities, Inc., 74 Ohio St. 3d 495 (Ohio 1996).

Opinion

Moyer, C.J.

This case presents the court with the issue of whether R.C. 1707.01(J) gives intrastate securities dealers adequate notice that fedéral case law may be applied to calculate the current market price of over-the-counter stock to determine if the conduct of a dealer is fraudulent. For the following reasons, we answer that question in the affirmative.

R.C. 1707.44(G), at the time relevant herein, provided that “[n]o person in selling securities shall knowingly engage in any act or practice which is, in sections 1707.01 to 1707.45 of the Revised Code, declared illegal, defined as fraudulent, or prohibited.” The definition for “fraud” as used in the Act is found in R.C. 1707.01(J), which provides:

“ ‘Fraud,’ ‘fraudulent acts,’ ‘fraudulent practices,’ or ‘fraudulent transactions’ means anything recognized on or after July 22, 1929, as such in courts of law or equity; any device, scheme, or artifice to defraud or to obtain money or property by means of any false pretense, representation, or promise; any fictitious or pretended purchase or sale of securities; and any act, practice, transaction, or course of business relating to the sale of securities which is fraudulent or which has operated or would operate as a fraud upon the purchaser.” (Emphasis added.)

The court of appeals below held R.C. 1707.01(J) to be unconstitutionally void for vagueness. The court determined that Skyline had inadequate notice that federal securities law standards used in calculating current market price could be applied in enforcing Ohio securities law. Moreover, it held that “[a] general rule stating that federal securities law applies to Ohio intrastate securities trading would be insufficient as it would be impossible for anyone to know what standard [498]*498applied.” Consequently, the appellate court reversed the judgment of the trial court and remanded the case because, in its view, the Division’s calculations in determining current market price based on federal law could not be used to support the charges brought against Skyline without violating substantive due process. We disagree.

It is well established that all legislative enactments enjoy a strong presumption of constitutionality, and that any assertion of unconstitutionality must be proved beyond a reasonable doubt by the challenging party. State v. Collier (1991), 62 Ohio St.3d 267, 269, 581 N.E.2d 552, 553. Moreover, in order to prove that a statute is unconstitutionally vague, “the challenger must show that upon examining the statute, an individual of ordinary intelligence would not understand what he is required to do under the law.” State v. Anderson (1991), 57 Ohio St.3d 168, 171, 566 N.E.2d 1224, 1226.

The Ohio Securities Act, generally referred to as Ohio Blue Sky Law, was adopted on July 22, 1929 to prevent the fraudulent exploitation of the investing public through the sale of securities. United States v. Tehan (C.A.6, 1966), 365 F.2d 191, 194. See, also, Hall v. Geiger-Jones Co. (1917), 242 U.S. 539, 37 S.Ct. 217, 61 L.Ed. 480, upholding the constitutional validity of the former Ohio Blue Sky Law in regulating the sale of all securities. Many of the enacted statutes are remedial in nature, and have been drafted broadly to protect the investing public from its own imprudence as well as the chicanery of unscrupulous securities dealers. See Bronaugh v. R. & E. Dredging Co. (1968), 16 Ohio St.2d 35, 45 O.O.2d 321, 242 N.E.2d 572. In order to further the intended purpose of the Act, its securities anti-fraud provisions must be liberally construed.

The plain language of R.C. 1707.01(J) defines “fraud,” in part, as “anything recognized * * * as such in courts of law or equity.” We acknowledge that R.C. 1707.01(J) does not state the precise method to use to calculate current market price of securities sold in Ohio. The statute does, however, clearly indicate that the definition of fraud is to be derived from case law deciding this issue. Moreover, the General Assembly did not limit the source of the definition solely to courts of Ohio, or even to state courts generally, as it easily could have done. Rather, the legislature broadly drafted R.C. 1707.01(J) to draw from all securities case law defining fraudulent conduct in both state and federal courts. Interpreting R.C. 1707.01(J) as not including federal securities law as a defining source for “fraud” would require us to modify the statute by inserting the word “Ohio” or “state” before the phrase “courts of law or equity.” We refuse to do so, for when construing a statute “it is the duty of this court to give effect to the words used, not to delete words used or to insert words not used.” Cleveland Elec. Illum. Co. v. Cleveland (1988), 37 Ohio St.3d 50, 524 N.E.2d 441, paragraph three of the syllabus.

[499]*499As with most statutes, R.C. 1707.01(J) was drafted to address unforeseen variations in factual circumstances. Recognizing the creativity of unscrupulous securities dealers intent on defrauding Ohio investors, the General Assembly chose not to create a specific formula for calculating CMP and determining fraudulent conduct. Instead, the General Assembly drafted R.C. 1707.01(J) so that securities case law, both state and federal, provides the appropriate standards. This is sagacious for several reasons. First, the securities market is constantly evolving. By incorporating into the statute a larger body of law by which to define fraudulent conduct, the General Assembly has provided for inevitable changes in market structure that might otherwise require redrafting of the statute. This has the desirable effect of preventing Ohio securities law from developing in a vacuum, and furthers the goal of unifying securities law.

Second, federal standards for determining CMP are more well developed than state standards. Federal courts and administrative tribunals like the Securities and Exchange Commission have a greater experience with, and a more continuous exposure to, the complicated field of securities fraud cases and, consequently, provide a more extensive body of law to draw from in defining fraud. Therefore, we hold that R.C. 1707.01(J) provides constitutionally adequate notice that federal law may be applied to the conduct of licensed intrastate securities dealers for the purpose of calculating the current market price of over-the-counter securities and determining fraudulent conduct.

Furthermore, we disagree with the suggestion that R.C. 1707.01(J) states a standard that is “impossible” for a reasonable securities dealer to discern. Many federal securities cases exist that provide a clear and workable method of calculating CMP, and set the standard for what constitutes an excessive price markup amounting to fraudulent conduct. See, e.g., Charles Hughes & Co. v. SEC (C.A.2, 1943), 139 F.2d 434; In the Matter of Alstead, Dempsey & Co., Inc. (1984), SEC File No. 3-6135, 47 S.E.C. 1034.

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Bluebook (online)
74 Ohio St. 3d 495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holderman-v-columbus-skyline-securities-inc-ohio-1996.