State, Ex Rel. Corrigan v. Barnes

443 N.E.2d 1034, 3 Ohio App. 3d 40, 3 Ohio B. 43, 1982 Ohio App. LEXIS 10901

• Court: Ohio Court of Appeals
• Decided: April 19, 1982
• Docket: 44926
• Status: Published

Opinions

Jackson, J.

This is an original proceeding in quo warranto, 1 instituted by relator, John T. Corrigan, Prosecuting Attorney of Cuyahoga County, against respondent, John E. Barnes, a member of the City Council of Cleveland, Ohio. Relator contends that respondent is barred from holding public office within the state of Ohio, by reason of a federal felony conviction.

The respondent moved this court for judgment on the pleadings. In ruling upon this motion, the material allegations of the complaint and the reasonable inferences therefrom are assumed to be true; judgment may be rendered for the moving party only if it appears that such party is entitled to judgment as a matter of law. Peterson v. Teodosio (1973), 34 Ohio St. 2d 161, 165-166 [63 O.O.2d 262].

It is alleged in the complaint that on January 4, 1954, respondent Barnes was convicted in federal court of refusal to submit to induction into the armed forces of the United States, and that he was sentenced to federal prison. These factual allegations are admitted by the respondent. It is therefore appropriate for this court to dispose of this case by way of judgment on the pleadings, if it appears that respondent is entitled to judgment as a matter of law.

Under Ohio law in effect at the time of respondent’s conviction, persons convicted of felonies in the state of Ohio, and persons who had been imprisoned in the penitentiary of any other state for crimes punishable by imprisonment in the penitentiary under the laws of Ohio, were disenfranchised, and were forbidden from holding any office of honor, trust, or profit. G.C. 13458-1 and 13458-2. 2

The language of G.C. 13458-1 and 13458-2 did not make any reference to persons convicted of federal crimes, or to persons incarcerated in federal prisons. There is judicial and administrative authority for the proposition that such persons were not included within the ambit of these statutes. In 1950 the Ohio Attorney General stated:

“* * * There is no provision in Ohio law that would disfranchise a person convicted of a federal crime in a federal court. * * *” 1950 Ohio Atty. Gen. Opinions, No. 1499, at page 108.

The Court of Common Pleas of Putnam County, in 1962, held that a person who had been sentenced to a federal prison was entitled to vote in a local school board election:

“The federal parollee appeared at the voting place, asked the judges if he should vote, who, not being sure of the immediate answer, instructed him to vote and put his ballot in the disputed ballot envelope. This ballot was later ordered counted by the board of elections. Article V, Section 1 of the Ohio Constitution provides that every citizen of the United States of the age of twenty-one, who shall have been a resident of the state one year, shall have the qualifications of an elector. Article V, Section 4, provides the General Assembly shall have power to exclude from the privilege of voting certain persons, including those convicted of a felony or infamous crime.

“Section 2961.01, Revised Code [former G.C. 13458-1], provides for disfranchisement of a person convicted of a felony in this State. Section 2961.02, Revised Code [former G.C. 13458-2], provides for disfranchisement of anyone who has been imprisoned in the penitentiary of .any other state. There is no Statute relating to disfranchisement of those convicted of federal crimes, nor does the United States have a disfranchising statute. Therefore, under Article V, Section 1, the federal parollee was entitled to vote, the legislature not having enacted a statute disfranchising him.” In re Sugar Creek Local School District, Transfer (1962), 90 Ohio Law Abs. 257, 262-263.

Effective January 1, 1974, R.C. 2961.02 (former G.C. 13458-2) was repealed (see 134 Ohio Laws, Part II, 1866, 2032-2034), and R.C. 2961.01 (former G.C. 13458-1) was amended (see 134 Ohio Laws, Part II, 1866, 2004), to cover persons convicted of felonies under federal law. The amended version, still in effect, provides in part as follows:

“A person convicted of a felony under the laws of this or any other state or the United States, unless his conviction is reversed or annulled, is incompetent to be an elector or juror, or to hold an office of honor, trust, or profit. * * *” (Emphasis added.)

Respondent contends that, as applied to him, R.C. 2961.01 as amended is unconstitutional, under the Constitutions of Ohio and the United States. Respondent specifically argues that amended R.C. 2961.01, if applied to him, is invalid because it is an ex post facto law, a retroactive law, and a law which is in conflict with the Home Rule provisions of the Ohio Constitution. Each of these issues is separately discussed below.

I. Ex Post Facto Law

Ex post facto laws are prohibited by Section 10, Article I of the United States Constitution, which provides, in part: “No State shall * * * pass any * * * ex post facto Law * * The United States Supreme Court has defined an ex post fac-to law as follows:

“ ‘It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto. ’ ” Dobbert v. Florida (1977), 432 U.S. 282, 292, quoting Beazell v. Ohio (1925), 269 U.S. 167, 169-170 (Stone, J.).

The issue presented in this case is whether a law which prohibits a person from holding public office, because of an illegal act committed prior to the enactment of the law, is an ex post facto law. This question was answered in the affirmative in 1867, by the United States Supreme Court, in the cases of Cummings v. Missouri (1867), 4 Wall. 277 (71 U.S.), 18 L. Ed. 356, and Ex Parte Garland (1867), 4 Wall. 333, 18 L. Ed. 366.

Following the close of hostilities in the Civil War, the state of Missouri adopted a new constitution, which forbade any citizen from holding public office, voting, serving as a juror, practicing law, or preaching any religion, until the citizen had taken an oath swearing that he had not taken arms against the United States, or expressed any sympathy with those engaged in the rebellion, or expressed any disaffection toward the government of the United States, or entered or left the state of Missouri for the purpose of evading enrollment in the military service of the United States. John Cummings, a Catholic priest, pursued his vocation and refused to take this oath. He was convicted and fined, and his conviction was affirmed by the Supreme Court of Missouri. The Supreme Court of the United States vacated his conviction, on the ground that the Missouri constitutional provisions prescribing the oath were éx post facto laws.

The state of Missouri, like the state of Ohio in the case at bar, suggested to the court that the oath merely established qualifications for voting and for pursuing various callings, and should not be regarded as “punishment” for acts already committed. Justice Field, writing for a majority of the court, described the long history of deprivation of civil rights as a form of punishment, dating from statutes of William III and George I; he quoted the following selection from Blackstone’s Commentaries:

“ ‘Some punishments,’ says Blackstone, ‘consist in exile or banishment, by abjuration of the realm or transportation; others in loss of liberty by perpetual or temporary imprisonment. Some extend to confiscation, by forfeiture of lands or movables, or both, or of the profits of lands for life; others induce a disability of holding offices or employments, being heirs, executors, and the like.’ ” (Footnote omitted.) 4 Wall., at 321, 18 L.Ed., at 362.

The Supreme Court came to the following conclusion:

“The theory upon which our political institutions rests is, that all men have certain inalienable rights — that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection of all these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined.” 4 Wall., 321-322, 18 L. Ed., 362.

The Supreme Court found that the effect of the Missouri constitutional provisions was to punish persons who had committed certain legal and illegal acts prior to the adoption of the Constitution, and concluded that these provisions were ex post facto laws:

“Some of the acts at which the oath is directed constituted high offences at the time they were committed, to which, upon conviction, fine and imprisonment, or other heavy penalties, were attached. The clauses which provide a further penalty for these acts are also within the definition of an ex post facto law — ‘they impose additional punishment to that prescribed when the act was committed.’ ” 4 Wall., 328, 18 L. Ed., 364.

In Ex Parte Garland, supra, decided the same day as Cummings v. Missouri, Justice Field struck down a federal statute which was very similar to the provisions of the Missouri constitution considered in Cummings, on the ground that the statute constituted an ex post facto law, a bill of attainder, and because it was in conflict with a presidential order pardoning Mr. Garland for his participation in the rebellion.

In two subsequent decisions, the Supreme Court has held that a state may enact statutes prohibiting a convicted felon from engaging in a particular trade or profession, and that retrospective application of such statutes does not violate the constitutional prohibition against ex post facto laws. De Veau v. Braisted (1960), 363 U.S. 144 (upholding law barring felons from holding office in Longshoremen’s unions); and Hawker v. New York (1898), 170 U.S. 189 (upholding law barring convicted felons from practicing medicine). The test, as enunciated by the Supreme Court, is:

“* * * whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications, for a profession. * * *” De Veau v. Braisted, supra, at 160.

In De Veau, the law barring felons from union office was enacted as part of the New York Waterfront Commission Act, which the court described as “* * * a detailed scheme for governmental supervision of employment on the waterfront in the Port of New York. * * *” De Veau v. Braisted, supra, at 145. Criminal infiltration of unions representing longshoremen had been decried by the New York Crime Commission, whose report on the subject was submitted to the New York State Legislature. The court found that the primary purpose of the statute was not to punish felons, but to establish qualifications for union officers:

“* * * The proof is overwhelming that New York sought not to punish ex-felons, but to devise what was felt to be a much-needed scheme of regulation of the waterfront, and for the effectuation of that scheme it became important whether individuals had previously been convicted of a felony.” Id., at 160.

In contrast, the Ohio statute under review is not contained in the section of the Revised Code which establishes qualifications for members of the legislative authority of municipalities, R.C. 731.02. R.C. 2961.01 is instead contained in the Criminal Code; the title of the statute is “Civil rights of convicted felons.” 3

The primary purpose and effect of this statute is to punish felony offenders by depriving them of certain civil rights. Since the legislative aim was primarily punishment for criminal acts rather than establishment of qualifications for a profession, the statute is subject to the prohibition against ex post facto laws.

It is the considered opinion of this Court of Appeals that R.C. 2961.01, as applied to persons convicted of felonies under federal law prior to January 1, 1974, is an ex post facto law.

II. Retroactive Law

The Ohio Legislature is prohibited from enacting retroactive laws under Section 28, Article II of the Constitution, which provides: “The general assembly shall have no power to pass retroactive laws * * *.”

For purposes of this lawsuit, the pertinent distinction between an ex post facto law and a retroactive one is that ex post facto laws include statutes which increase the punishment of a prior criminal act, whereas retroactive laws include statutes which “ * * [attach] a new disability in respect to past transactions * * *’ ”, (emphasis added), State, ex rel. Michaels, v. Morse (1956), 165 Ohio St. 599, 604 [60 O.O. 531]. Retroactive laws are therefore a larger category than ex post facto laws, and comprise statutes imposing “disabilities” as well as those imposing “punishments.” The Ohio Supreme Court, by way of obiter dictum, recently noted that R.C. 2961.01 is an example of “* * * extra-territorial enforcement of the disabilities associated with criminal convictions * * *.” Barker v. State (1980), 62 Ohio St. 2d 35, 39 [16 O.O.3d 22], atfn. 4.

There is no question but that the 1974 amendment to R.C. 2961.01, as interpreted by relator, would impose a new disability upon respondent as the result of his prior conduct, this disability being the deprivation of his right to hold public office. If the statute is applied with respect to acts which occurred prior to its effective date, it must be considered a retroactive law, and invalid under the Constitution of Ohio.

III. Home Rule Provisions of Ohio Constitution

Respondent’s final contention is that R.C. 2961.01 is an unconstitutional interference with the authority of the city of Cleveland to regulate matters of local self-government. Sections 3 and 7 of Article XVIII of the Ohio Constitution provide:

“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.” (Section 3.)

“Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local- self-government.” (Section 7.)

The Ohio Supreme Court has given a broad interpretation to the power of municipalities to enact local legislation:

“* * * [Municipalities have the power to enact local legislation, as distinguished from matters of statewide concern without regard to general laws on the subject, except to the extent this power is limited by the Constitution itself.* * * ” State, ex rel. Kohl, v. Dunipace (1978), 56 Ohio St. 2d 120, 121 [10 O.O.3d 309].

Respondent contends that the qualifications of a person to hold the office of councilman in the city of Cleveland is a matter of purely local concern, and is governed solely by the provisions of the Cleveland City Charter. 4 Respondent relies upon State, ex rel. Bindas, v. Andrish (1956), 165 Ohio St. 441 [60 O.O.92]. The complete syllabus of that opinion is as follows:

“1. Although the Ohio Constitution limits the authority of municipalities to adopt and enforce ‘police, sanitary and other similar regulations’ to such regulations ‘as are not in conflict with general laws,’ there is no such limitation with respect to the ‘authority to exercise all [other] powers of local self-government.’

“2. A municipality can, by its charter and in the exercise of powers of local self-government, determine upon qualifications for its councilmen which may be different from those provided by statute.

“3. Where the charter of a city specifies certain qualifications for a councilman, the requirements of Section 731.02, Revised Code, as to qualifications of a member of the legislative authority of a city, will not apply in the absence of their adoption by other provisions of the charter.”

Unlike the statute under consideration in Bindas, the state statute before this court does not solely establish qualifications for the office of city councilman. This court is persuaded that R.C. 2961.01 does not involve a subject of purely local concern, but one of statewide concern, namely, the punishment of felony offenders, Municipalities have no power to punish felons; violation of a municipal ordinance may constitute no more than a misdemeanor. R.C. 715.67. Only the legislature of the state of Ohio has the power to impose a further penalty upon felony offenders. R.C. 2961.01 is therefore not in conflict with the Home Rule provisions of the Ohio Constitution.

IV. Conclusion

The state of Ohio has chosen to deprive felons of certain civil rights, among them the right to hold public office. That this is the prerogative of the state we have no doubt. The holding of this court is simply that the legislature may not apply this statute to persons who committed felonies under federal law prior to the effective date of the 1974 amendment of the statute.

Accordingly, respondent’s motion for judgment on the pleadings is granted, and relator’s complaint in quo warranto is dismissed with prejudice.

Judgment accordingly.

Parrino and Markus, JJ., concur.

1 A civil action in quo warranto may be brought against “* * * a person who * * * unlawfully holds or exercises a public office * * R.C. 2733.01(A). The Courts of Appeals and the Supreme Court have original jurisdiction in such actions. R.C. 2733.03.

2 Former G.C. 13458-1 provided:

“A person convicted of a felony in this state, unless his conviction is reversed or annulled, shall be incompetent to be an elector or juror, or to hold an office of honor, trust or profit. The pardon of a convict shall effect a restoration of the rights and privileges so forfeited or they may be restored as otherwise provided by law, but a pardon shall not release a' convict from the costs of his conviction, unless so ordered.”

Former G.C. 13458-2 provided:

“A person who has been imprisoned in the penitentiary of any other state of the United States, under sentence for the commission of a crime punishable by the laws of this state by imprisonment in the penitentiary, is incompetent to be an elector or juror, or hold an office of honor, trust or profit within this state unless he has received a pardon from the Governor of the state in which he was imprisoned.”

3 This court is cognizant that title, chapter, and section headings do not form any part of the Revised Code. R.C. 1.01. The physical location of a provision of the code is, however, evidence of the legislative purpose.

4 The relevant portion of the Cleveland City Charter, Chapter 5, Section 26, provides in part:

“Members of the Council shall'be residents of the City and have the qualifications of electors therein. A member of the Council, who at the time of his election, was a resident of the ward which he represents shall forfeit his office if he removes therefrom. Members of Council shall not hold any other public office or employment except that of notary public or member of the State militia, and shall not be interested in the profits or emoluments of any contract job, work or service of the Municipality. Any member who shall cease to possess any of the qualifications herein required shall forthwith forfeit his office, and any such contract in which any member is or may become interested may be declared void by the Council. * * *”