532 N.E.2d 184 | Ohio Ct. App. | 1987
Plaintiff-appellant, city of Whitehall, appeals from a judgment entered in the Franklin County Municipal Court sustaining defendant-appellee Robert C. Moling's motion to *67 dismiss the charges against him on equal protection grounds. We conclude that Moling failed to demonstrate that the city of Whitehall's policy of selective enforcement of its ordinance violated his rights under the Equal Protection Clause. Consequently, we hold that the trial court erred in sustaining the motion to dismiss.
Whitehall Codified Ordinances Section
It had been the city of Whitehall's policy to enforce the ban on parking commercial vehicles in residential districts only when a complaint was received about a specific violation. However, during August and September 1984, several Whitehall residents attended city council committee meetings and expressed dissatisfaction with this policy. According to the residents, the noise and fumes associated with larger commercial vehicles made strict enforcement of Section
At the council meeting held September 24, 1984, the Mayor of Whitehall, John A. Bishop, explained that, after reviewing the problem, he could find no reason to change the city's method of enforcing Section
"Whereas, the City of Whitehall has numerous ordinances dealing with zoning, signs, health, traffic, and criminal matters that we find it virtually impossible to enforce them all in a strict manner, given the limited number of personnel that we have and/or that it is reasonable for us to have.
"As a practical matter we must set priorities for our personnel to follow and to concentrate on day after day. Those things that do not create a danger to the health and safety of the citizen must take a lower priority and be enforced on a complaint received basis only or when an officer sees a flagrant violation.
"Therefore after two public hearings and after conferring with other officials, I hereby order that the Parking of Prohibited Commercial Vehicles as described in the Codified Ordinances in Residential Districts will continue to be enforced on citizencomplaint only, except that Prohibited Commercial Vehicles shall not be allowed to park on any paved portion of any street in this City. Such parking constitutes a hazard to the safety of our citizens."2 (Emphasis in original.)
Robert C. Moling was a resident of Whitehall who worked as a truck driver. Pursuant to the new enforcement policy, Moling was cited on four separate occasions under Section
After Moling appeared in the Whitehall Mayor's Court and demanded a trial by jury, the case was transferred to the Franklin County Municipal Court. On March 14, 1985, Moling filed a motion to dismiss the charges against him, claiming that the city of Whitehall had denied him equal protection of the law by enforcing Section
"The City has failed to establish a reasonable basis for distinguishing between violations of the subject ordinance that occur on the city's streets rather than on residential property.
"Rather than setting a lower priority for police enforcement of violations on residential property, the City has created a method of enforcement that prohibits citations by the police unless a citizen complaint is received.
"Although this Court finds the City's rationale for its Executive Order logical on its face and without evil intent towards the Defendant the City's action violates the equal protection clause of both the United States and Ohio Constitutions.
"This Court sustains the Defendant's Motion to Dismiss for the reasons set forth above."
From this decision, the city of Whitehall appeals to this court, presenting the following assignment of error:
"The court below erred in holding that the city's executive order of September 24, 1984 violated the Equal Protection Clause of the United States and the Ohio Constitutions."
In its brief, the city of Whitehall concedes that Section
In response, Moling argues that the trial court's decision was correct since Mayor Bishop's executive order created an arbitrary, unreasonable distinction that punished some while allowing others equally guilty to go free. For the reasons set forth below, we find Moling's argument unpersuasive.
We note first that, prior to the executive order, Section
Moreover, even if we were to find that Moling had standing to assert his constitutional challenge, we note that Section
We also cannot agree with Moling that the city of Whitehall's enforcement policy violated the principle set forth in Yick Wo v.Hopkins (1886),
"* * * Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. * * *" Id. at 373-374.
However, the Supreme Court has held that the conscious exercise of some selectivity in enforcing a statute fair on its face does not in and of itself amount to a constitutional violation. Oyler
v. Boles (1962),
"`* * * (1) [T]hat, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. * * *'" Id. at 134, 17 O.O. 3d at 82,
While Moling acknowledges these general principles, he contends that under Ohio law, a distinction is made between those prosecuted under criminal statutes and those prosecuted under regulatory statutes. According to Moling, it is Ohio's policy that those prosecuted under regulatory statutes are to be accorded a higher level of constitutional protection and need only show that the statute in question has been selectively enforced in order to establish a denial of equal protection.
We have been unable to find support for Moling's contention that a defendant prosecuted under a regulatory statute is relieved of his obligation to show that his prosecution was based upon a constitutionally impermissible standard such as race, religion, or other arbitrary classification. In our own review of the case law, we have found that, whether the statute in question was regulatory or criminal in nature, courts have uniformly required the defendant to show not only that others similarly situated have not been prosecuted, but also that his own prosecution was invidiously motivated. In our opinion, Moling's evidence was insufficient to establish that his prosecution was the result of invidious motives or bad faith on the part of the Whitehall authorities.
In In re 303 West 42nd St. Corp. v. Klein (1979),
Finally, Moling argues that the trial court's ruling on his motion was correct since equal protection problems are inherent in a complaint-only enforcement policy. Moling cites two New York cases, People v. Acme Markets, Inc. (1975),
Appellant's assignment of error is sustained. The judgment of the trial court is reversed and the cause is remanded for trial on the merits.
Judgment reversed and cause remanded.
STRAUSBAUGH, P.J., and BOWMAN, J., concur.
FAIN, J., of the Second Appellate District, sitting by assignment in the Tenth Appellate District.
"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."