State v. Romage
138 Ohio St. 3d 390
| Ohio | 2014Background
- Romage was charged under R.C. 2905.05(A) in Franklin County Municipal Court for allegedly soliciting a child under fourteen to accompany him; the action center was Columbus police complaint alleging he offered to carry boxes for money.
- R.C. 2905.05(A) prohibits knowingly soliciting, coaxing, enticing, or luring a child under fourteen to accompany the actor without parental permission, with exemptions for certain professionals and emergency personnel or when acting within duties.
- Romage moved to dismiss as overbroad, citing Ohio appellate decisions striking down similar provisions.
- The trial court dismissed the complaint; the 10th District Court of Appeals found the statute unconstitutional for overbreadth, leading to a certified conflict with the First District’s Clark decision.
- This Court accepted the discretionary appeal to resolve whether R.C. 2905.05(A) is unconstitutionally overbroad and whether severance or narrowing could save it.
- The majority ultimately held the statute overbroad and unconstitutional as written, affirming the trial court and the 10th District; a dissent would have sustained the statute with a narrowing construction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is R.C. 2905.05(A) unconstitutionally overbroad | Romage argues the statute sweeps in constitutionally protected conduct | State contends narrowing or severing can save the statute | Yes, overbroad and unconstitutional as written |
| Can the word 'solicit' be narrowly construed to save the statute | Romage asserts a narrow 'solicit' avoids overbreadth | State seeks noscitur a sociis or narrower reading | No; even narrow readings would still capture substantial protected activity |
| Is severance of the word 'solicit' a constitutional fix | Romage argues severing 'solicit' saves the statute | State relies on Geiger severance test | No; severance fails Geiger test and the remaining language remains overbroad |
| Does the statute's broad reach before severance implicate the First Amendment | Romage emphasizes protection of innocent conduct | State maintains legitimate aim to protect children | The statute remains unconstitutionally overbroad even with narrowing or severance |
Key Cases Cited
- State v. Chapple, 175 Ohio App.3d 658 (2008-Ohio-1157) (overbreadth concerns in child-enticement context; protected activity swept in)
- State v. Clark, 2005-Ohio-1324 (1st Dist. 2005 WL 678565) (conflicting upshot on constitutionality; distinguishable from current amend.)
- Cleveland v. Cieslak, 2009-Ohio-4035 (8th Dist. 2009) (analysis of comparable municipal ordinance; overbreadth concerns)
- State v. Goode, 2013-Ohio-556 (9th Dist. Summit) (held statute overbroad due to sweeping protected speech)
- Geiger v. Geiger, 117 Ohio St. 451 (1927) (Geiger severance test for severing unconstitutional parts)