THE STATE OF OHIO, APPELLANT, v. MOLE, APPELLEE.
No. 2013-1619
Supreme Court of Ohio
Submitted July 9, 2014—Decided July 28, 2016.
2016-Ohio-5124
O‘DONNELL, J., dissents and would affirm the decision of the Board of Tax Appeals.
Baker & Hostetler, L.L.P., Edward J. Bernert, Elizabeth A. McNellie, and Trischa Snyder Chapman, for appellant.
Michael DeWine, Attorney General, and Daniel G. Kim and Daniel W. Fausey, Assistant Attorneys General, for appellee.
O‘CONNOR, C.J.
{¶ 1} In this appeal, we address the validity of a facial constitutional attack, on equal-protection grounds, against a subdivision of Ohio‘s sexual-battery statute,
{¶ 2}
RELEVANT BACKGROUND
{¶ 3} Appellee, Matthew Mole, was a police officer. He first encountered J.S. when J.S. initiated a conversation with Mole through the use of a dating application on his mobile phone.
{¶ 4} J.S. claimed to be 18 years old and a senior in high school. Mole was 35. Upon J.S.‘s invitation, Mole came to J.S.‘s house at 3:00 a.m. on December 19, 2011, and was led into an unlit sunroom at the back of the house. The two undressed and performed oral sex on each other in the dark. They were discovered by J.S.‘s mother shortly after. At that point, Mole learned, for the first time, that J.S. was 14 years old.
{¶ 5} Mole was charged with one count of unlawful sexual conduct with a minor,
{¶ 6} Before trial, Mole moved the trial court to declare
{¶ 7} At trial, Mole elected to have the unlawful-sexual-conduct charge tried to the jury and the sexual-battery charge tried to the bench. The jury became deadlocked, the court declared a mistrial, and the state dismissed the indictment as to the charge under
{¶ 8} But the bench trial resulted in Mole‘s conviction for sexual battery under
{¶ 9} Mole appealed to the Eighth District Court of Appeals, arguing that
ANALYSIS
{¶ 10} At the outset, we are mindful of our duty to defer to the General Assembly:
A statute is presumed constitutional. “In enacting a statute, it is presumed that * * * [c]ompliance with the constitutions of the state and of the United States is intended.”
R.C. 1.47(A) . See also State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547, ¶ 6. Courts have a duty to liberally construe statutes “to save them from constitutional infirmities.” Desenco, Inc. v. Akron, 84 Ohio St.3d 535, 538, 706 N.E.2d 323 (1999).
Mahoning Edn. Assn. of Dev. Disabilities v. State Emp. Relations Bd., 137 Ohio St.3d 257, 2013-Ohio-4654, 998 N.E.2d 1124, ¶ 13. However, this presumption of constitutionality is rebuttable. State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus.
{¶ 11} The presumption of constitutionality is rebutted only when it appears beyond a reasonable doubt that the statute and the Constitution are clearly incompatible. Id.; State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, ¶ 7. When incompatibility is clear, it is the duty of this court to declare the statute unconstitutional. Cincinnati City School Dist. Bd. of Edn. v. Walter, 58 Ohio St.2d 368, 383, 390 N.E.2d 813 (1979).
{¶ 12} With these principles in mind, we turn to the Constitutions and our analysis of
{¶ 14} Although this court previously recognized that the Equal Protection Clauses of the United States Constitution and the Ohio Constitution are substantively equivalent and that the same review is required, Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 60, 717 N.E.2d 286 (1999) (“the federal and Ohio Equal Protection Clauses are to be construed and analyzed identically“), we also have made clear that the Ohio Constitution is a document of independent force, Arnold v. Cleveland, 67 Ohio St.3d 35, 42, 616 N.E.2d 163 (1993). As we explained in Arnold:
The United States Supreme Court has repeatedly reminded state courts that they are free to construe their state constitutions as providing different or even broader individual liberties than those provided under the federal Constitution. See, e.g., City of Mesquite v. Aladdin‘s Castle, Inc., 455 U.S. 283, 293, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982) (“* * * [A] state court is entirely free to read its own State‘s constitution more broadly than this Court reads the Federal Constitution, or to reject the mode of analysis used by this Court in favor of a different analysis of its corresponding constitutional guarantee.“); and California v. Greenwood, 486 U.S. 35, 43, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (“Individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution.“). See, also, PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). Further, in Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Supreme Court reinforced its comments in this area by declaring that the state courts’ interpretations of state constitutions are to be accepted as final, as long as the state court plainly states that its decision is based on independent and adequate state grounds.
{¶ 15} Arnold stands as the court‘s first clear embrace of Justice William J. Brennan‘s watershed article, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977), which has been described as a “plea for a
{¶ 16} Notably, however, in the wake of Arnold, we have often, but inconsistently, heeded the hortatory call to the new federalism.
{¶ 17} Four years after our decision in Arnold, this court disavowed the “new federalism,” at least in the context of the constitutional rights protecting individuals from searches and seizures by the government. State v. Robinette, 80 Ohio St.3d 234, 238, 685 N.E.2d 762 (1997) (“Despite this wave of New Federalism, where the [state and federal constitutional] provisions are similar and no persuasive reason for a differing interpretation is presented, this court has determined that protections afforded by Ohio‘s Constitution are coextensive with those provided by the United States Constitution“). But two years later, in Simmons-Harris v. Goff, 86 Ohio St.3d 1, 10, 711 N.E.2d 203 (1999), we again made clear that even when we previously have discussed provisions in the federal and Ohio Constitutions jointly, we will not “irreversibly tie ourselves” to an interpretation of the language of the Ohio Constitution just because it is consistent with language of the federal Constitution. And the following year, in Humphrey v. Lane, 89 Ohio St.3d 62, 68, 728 N.E.2d 1039 (2000), we made clear that the Ohio Constitution‘s Free Exercise Clause grants broader protections to Ohio‘s citizens than the federal Constitution affords.
{¶ 18} In 2003, we again embraced the new federalism, even in areas in which we had rejected it previously. In State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175, syllabus, we departed from Robinette‘s disavowal of the new federalism and held that
{¶ 19} Soon thereafter, we announced that Ohio‘s Constitution protected Ohioans from government appropriation of their private property if the appropriation was based solely on the fact that it would provide an economic benefit to the community. Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, paragraph one of the syllabus. In doing so, we were undaunted by the fact that the United States Supreme Court had recently expressly permitted similar takings under federal constitutional law. Kelo v. New London, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005). See Norwood at ¶ 76 (expressly rejecting Kelo‘s approach for interpreting the Ohio Constitution).
{¶ 21} We once again reaffirm that this court, the ultimate arbiter of the meaning of the Ohio Constitution, can and will interpret our Constitution to afford greater rights to our citizens when we believe that such an interpretation is both prudent and not inconsistent with the intent of the framers. We also reaffirm that we are not confined by the federal courts’ interpretations of similar provisions in the federal Constitution any more than we are confined by other states’ high courts’ interpretations of similar provisions in their states’ constitutions. As Judge Sutton has explained,
There is no reason to think, as an interpretive matter, that constitutional guarantees of independent sovereigns, even guarantees with the same or similar words, must be construed the same. Still less is there reason to think that a highly generalized guarantee, such as a prohibition on “unreasonable” searches, would have just one meaning for a range of differently situated sovereigns.
Sutton, What Does—and Does Not—Ail State Constitutional Law, 59 U.Kan.L.Rev. 687, 707 (2011). Federal opinions do not control our independent analyses in interpreting the Ohio Constitution, even when we look to federal precedent for guidance. See Doe v. State, 189 P.3d 999, 1007 (Alaska 2008).
{¶ 22} We can and should borrow from well-reasoned and persuasive precedent from other states and the federal courts, but in so doing we cannot be compelled to parrot those interpretations. See Davenport v. Garcia, 834 S.W.2d 4, 20-21 (Tex.1992). Instead, we embrace the notion that we may, and should, consider Ohio‘s conditions and traditions in interpreting our own state‘s constitutional
{¶ 23} With these understandings in mind, we turn to the question before us, which arises in the realm of equal-protection principles under both the federal and Ohio Constitutions. As explained below, we hold that
Equal Protection
{¶ 24} An equal-protection analysis of any law centers upon the law‘s classification of persons and whether the classification relates to a legitimate government interest. State ex rel. Doersam v. Indus. Comm., 45 Ohio St.3d 115, 119-120, 543 N.E.2d 1169 (1989). The federal Equal Protection Clause does not prohibit a legislature from creating laws that treat a group of people differently from others outside the group. But it does prohibit different treatment based on criteria that are unrelated to the purpose of the law. Johnson v. Robison, 415 U.S. 361, 374, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); State ex rel. Doersam at 119-120. “[A]ll persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). As the high court has explained,
The equal protection clause, like the due process of law clause, is not susceptible of exact delimitation. No definite rule in respect of either, which automatically will solve the question in specific instances, can be formulated. Certain general principles, however, have been established, in the light of which the cases as they arise are to be considered. In the first place, it may be said generally that the equal protection clause means that
the rights of all persons must rest upon the same rule under similar circumstances, Kentucky Railroad Tax Cases, 115 U.S. 321, 337, 6 S.Ct. 57, 29 L.Ed. 414 [1885]; Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 293, 18 S.Ct. 594, 42 L.Ed. 1037 [1898], and that it applies to the exercise of all the powers of the state which can affect the individual or his property * * *.
Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37, 48 S.Ct. 423, 72 L.Ed. 770 (1928).
{¶ 25} Although the federal Equal Protection Clause does not forbid classification, any classification must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. Id., citing Schlesinger v. Wisconsin, 270 U.S. 230, 240, 46 S.Ct. 260, 70 L.Ed. 557 (1926); Air-Way Corp. v. Day, 266 U.S. 71, 85, 45 S.Ct. 12, 69 L.Ed. 169 (1924); Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920). “[T]he attempted classification ‘must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.‘” Louisville Gas & Elec. at 37, quoting Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U.S. 150, 155, 17 S.Ct. 255, 41 L.Ed. 666 (1897). And “[d]iscrimination[] of an unusual character especially suggest[s] careful consideration to determine whether they are obnoxious to the constitutional provision.” Id. at 37-38.
The Classification at Issue
{¶ 26}
{¶ 27} Under a federal rational-basis analysis,
The appropriate standard of review is whether the difference in treatment between [the affected class and those outside the class] rationally furthers a legitimate state interest. In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, see United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174, 179, 101 S.Ct. 453, 459, 461, 66 L.Ed.2d 368 (1980), the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, see Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d 659 (1981), and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational, see Cleburne v. Cleburne Living Center, Inc., 473 U.S. [432] at 446, 105 S.Ct. [3249] at 3257 [87 L.Ed.2d 313].
Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). Similarly, under the Ohio Constitution,
“The rational-basis test, involves a two-step analysis. We must first identify a valid state interest. Second, we must determine whether the method or means by which the state has chosen to advance that interest is rational.” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 9, citing Buchman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260, 267, 652 N.E.2d 952.
“Under the rational-basis standard, a state has no obligation to produce evidence to sustain the rationality of a statutory classification.” Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 91, citing Am. Assn. of Univ. Professors, Cent. State Univ. Chapter, 87 Ohio St.3d at 58, 60, 717 N.E.2d 286. “[S]tatutes are presumed to be constitutional and * * * courts have a duty to liberally construe statutes in order to save them from constitutional infirmities.” Eppley [v. Tri-Valley Local School Dist. Bd. of Edn.], 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 12, citing Desenco, Inc. v. Akron (1999), 84 Ohio St.3d 535, 538, 706 N.E.2d 323. The party challenging the constitutionality of a statute “bears the burden to negate every conceivable basis that might support the legislation.” Columbia Gas Transm. Corp. at ¶ 91, citing Lyons v. Limbach (1988), 40 Ohio St.3d 92, 94, 532 N.E.2d 106.
{¶ 28} Although the legislature has no obligation to justify or even state its reasons for making a particular classification, rational-basis review, whether under Ohio constitutional principles or federal ones, does not mean toothless scrutiny. Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). And the rational-basis test requires that the classification must bear a rational relationship to a legitimate government interest or that reasonable grounds must exist for drawing the distinction. Holeton v. Crouse Cartage Co., 92 Ohio St.3d 115, 131, 748 N.E.2d 1111 (2001). In other words, the Equal Protection Clause requires that “in defining a class subject to legislation, the distinctions that are drawn have ‘some relevance to the purpose for which the classification is made.‘” Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966), quoting Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966). Thus, although we respect that the General Assembly has the power to classify, we insist that its classifications must have a reasonable basis and may not “subject individuals to an arbitrary exercise of power.” Conley v. Shearer, 64 Ohio St.3d 284, 288, 595 N.E.2d 862 (1992). “[E]ven in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.” Romer v. Evans, 517 U.S. 620, 632, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).
{¶ 29} What, then, is the “object to be attained” by
Historical Background of R.C. 2907.03 and Strict-Liability Sex Crimes Based on Relationships
{¶ 30} Legislative perspectives on laws proscribing sex between certain classes of people have been mutable over the decades as societal norms have changed. The law of consent is an example of an area affected by shifting standards.
{¶ 31} The original age of consent for sexual activity for females in the United States under the common law was ten years. Michael M. v. Superior Court of Sonoma Cty., 450 U.S. 464, 494, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981), fn. 9 (Brennan, J., dissenting). From the 19th to the 20th century, the age of consent rose to 16 years under Ohio statutory law and as high as 18 years old in other states. See State v. Daniels, 169 Ohio St. 87, 95, 157 N.E.2d 736 (1959);
{¶ 32} When enacting the new
{¶ 33} In accordance with these factors, the new
(A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply:
(1) The offender knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution.
(2) The offender knows that the other person‘s ability to appraise the nature of or control the other person‘s own conduct is substantially impaired.
(3) The offender knows that the other person submits because the other person is unaware that the act is being committed.
(4) The offender knows that the other person submits because the other person mistakenly identifies the offender as the other person‘s spouse.
(5) The offender is the other person‘s natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person.
(6) The other person is in custody of law or a patient in a hospital or other institution, and the offender has supervisory or disciplinary authority over the other person.
(7) The offender is a teacher, administrator, coach, or other person in authority employed by or serving in [an elementary or secondary school], the other person is enrolled in or attends that school, and the offender is not enrolled in and does not attend that school.
(8) The other person is a minor, the offender is a teacher, administrator, coach, or other person in authority employed by or serving in an institution of higher education, and the other person is enrolled in or attends that institution.
(9) The other person is a minor, and the offender is the other person‘s athletic or other type of coach, is the other person‘s instructor, is the leader of a scouting troop of which the other person is a member, or is a person with temporary or occasional disciplinary control over the other person.
(10) The offender is a mental health professional, the other person is a mental health client or patient of the offender, and the offender induces the other person to submit by falsely representing to the other person that the sexual conduct is necessary for mental health treatment purposes.
(11) The other person is confined in a detention facility, and the offender is an employee of that detention facility.
(12) The other person is a minor, the offender is a cleric, and the other person is a member of, or attends, the church or congregation served by the cleric.
(13) The other person is a minor, the offender is a peace officer, and the offender is more than two years older than the other person.
(B) Whoever violates this section is guilty of sexual battery. Except as otherwise provided in this division, sexual battery is a felony of the third degree. * * *
{¶ 35} The first six subdivisions of
{¶ 36} For example, almost 20 years after the passage of Am.Sub.H.B. No. 511, the Ottawa County prosecutor unsuccessfully attempted to prosecute a high school teacher and coach for violating
{¶ 37} Directly after our decision in Noggle, the General Assembly amended
{¶ 38} The statute was next amended in an apparent response to outrage over cases in which psychologists had sex with their clients but received little to no punishment from their governing state boards of psychology. Ohio Senate Session, June 28, 2001, Part 1, available at http://www.OhioChannel.org/MediaLibrary/Media.aspx?fileId=111704, at 12:18 to 12:50. Initially, legislative efforts focused on criminalizing any sexual contact or conduct between mental-health professionals and their clients. Legislative Service Commission Bill Analysis of S.B. No. 9, as Introduced, 124th General Assembly. During the legislative debate, however, there were concerns about singling out one profession from the myriad of professions that serve vulnerable clients and about penalizing all consensual sexual activity between professionals and their clients regardless of the client‘s mental state. Ohio Senate Session, May 23, 2000, available at http://www.ohiochannel.org/MediaLibrary/Media.aspx?fileId=111763, at 25:35 to 29:03. A much more limited version of the bill ultimately became
{¶ 39} The next two additions,
{¶ 40} Finally, the General Assembly added the statutory provision at issue today,
{¶ 41} Similarly to the Ottawa County prosecutor in Noggle, the Logan County prosecutor pursued sexual-battery charges under
{¶ 42} The case led to calls for modifying the law to add peace officers to the sexual-battery statute. See Ohio House Session, remarks of Rep. Anthony Core favoring adoption of H.B. No. 209, available at http://www.ohiochannel.org/video/house-session-may-7-2008 (May 7, 2008) at 44:10 to 45:21. The General Assembly responded. As enacted,
State Interests
{¶ 43} The foregoing history demonstrates that the purpose of
{¶ 44} The state asserts two reasons for the legislature‘s classification of peace officers without regard to whether the peace officer uses his or her professional status to facilitate the forbidden sexual conduct: (1) holding peace officers to a higher standard to ensure integrity and to maintain the public trust and (2) protecting minors. We address each reason, mindful that whatever the legislative justification, we are obligated to consider any conceivable reason that the legislature might have had in enacting the classification. Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 91; Fed. Communications Comm. v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). See also Romer, 517 U.S. at 632, 116 S.Ct. 1620, 134 L.Ed.2d 855 (“In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous“).
{¶ 45} The state asserts that because peace officers hold a special position in society, the government has a legitimate interest in imposing standards on them that are higher than those that apply to every other Ohioan. That interest is widely accepted as legitimate. See Warrensville Hts. v. Jennings, 58 Ohio St.3d 206, 207, 569 N.E.2d 489 (1991) (noting “higher standard of conduct” for police officers).
{¶ 46} We agree that a peace officer occupies a unique position of public trust and authority that calls for special standards and penalties in many circumstances. See, e.g.,
{¶ 47} The sexual conduct at issue here was unrelated to Mole‘s professional status. And the jury‘s failure to convict him of unlawful sexual conduct with a minor makes clear that, but for his status as a peace officer, Mole would not be subject to criminal liability for the sexual conduct at issue in this case. Indeed, because the jury was unable to conclude that Mole had knowingly had sexual relations with a minor or that he was reckless in not ascertaining the minor‘s age, see
{¶ 48} The state urges that peace officers should be above suspicion of violation of the very laws they are sworn to enforce, and peace officers are regularly subjected to restrictions in their employment that are not applicable to ordinary citizens. When peace officers violate the high standards imposed on them by their professions, they are subject to discipline, including discharge. These interests are, of course, legitimate. As seen from the list of statutes above, the interest in holding peace officers to a higher standard is embedded in Ohio law. See also
{¶ 49} But none of the cited authorities stand for the proposition that singling out the occupation of police officers for differential criminal treatment is rational when it is based on nothing more than the occupation itself. See, e.g., Kelley at 248 (noting that the personal-grooming regulations of police officers had a rational basis of ensuring a uniformity of appearance so that the officers are “readily recognizable to the members of the public” or fostering esprit de corps within the force through similarity of appearance). All of the restrictions that the high court has held permissible are directly tied to the officer‘s conduct as an officer.
{¶ 50} To be sure, the kind of conduct criminalized by
{¶ 51} Peace officers must accept certain burdens as part of their employment in order to maintain the honor and privilege of being peace officers and to foster public trust. They do not lose all of their rights as ordinary citizens, including their constitutional right to be treated equally under the criminal law, simply because they have chosen the profession of peace officer. See Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (“policemen, like
{¶ 52} Although the state‘s interest in maintaining public trust and confidence in peace officers is considerable and undeniably legitimate,
The interest in protecting minors from sexual coercion
{¶ 53} The second interest offered by the state as justification for the classification of peace officers is the interest in “prohibiting peace officers from engaging in sex with children.” There is no dispute that the government has a legitimate, compelling interest in protecting the mental, emotional, and physical well-being of minors. See, e.g., Globe Newspaper Co. v. Norfolk Cty. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). “A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens * * *.” Prince v. Massachusetts, 321 U.S. 158, 168, 64 S.Ct. 438, 88 L.Ed. 645 (1944).
{¶ 54} Accordingly, the Supreme Court has sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights. See, e.g., Osborne v. Ohio, 495 U.S. 103, 109-110, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (government‘s interest in protecting children from victimization in child-pornography industry justifies impingement on possessor‘s
{¶ 55} The decisive question is whether the statutory classification of peace officers is a rational means of advancing that interest.
{¶ 56} The state asserts that because
{¶ 57} There is no profession that per se makes its members more likely to engage in sexually predatory behavior, including sex with minors. Rather, federal studies show that three-quarters of child sexual abuse occurs at the hands of family members or others in the victim‘s “circle of trust,” including their neighbors, teachers, coaches, scout leaders, youth-group volunteers, and doctors. Wingert, Priests Commit No More Abuse than Other Males, Newsweek (Apr. 7, 2010), available at http://www.newsweek.com/priests-commit-no-more-abuse-other-males-70625. And although a pedophile may seek employment in a capacity that permits contact with children or access to them, a number of professions afford those opportunities. In addition to other ways of gaining access to children, “[a] pedophile may also seek employment where he will be in contact with children (e.g., teacher, camp counselor, babysitter, school bus driver, coach) or where he can eventually specialize in working with children (e.g., physician, dentist, clergy member, photographer, social worker, law-enforcement officer).” Lanning, Child Molestors: A Behavioral Analysis (5th Ed.2010) 57, available at http://www.missingkids.org/en_US/publications/NC70.pdf. In other words, it is the access provided by the occupational relationship, and not the occupation by itself, that creates the risk of harm.
{¶ 58} Undeniably, the state has a valid, rational interest in proscribing the use of professional authority to sexually exploit minors or other vulnerable persons. And
{¶ 60} To obtain a conviction under
{¶ 61} “[E]qual protection requires * * * that reasonable grounds exist for making a distinction between those within and those without a designated class.” State v. Buckley, 16 Ohio St.2d 128, 134, 243 N.E.2d 66 (1968). When criminalization is based solely on the status of the classified group without any relationship to a legitimate state interest, the classification may be found to be unconstitutionally arbitrary. See Wheeling Steel Corp. v. Glander, 337 U.S. 562, 69 S.Ct. 1291, 93 L.Ed. 1544 (1949) (discriminatory taxation of out-of-state entities based solely on residency status is arbitrary and violates equal protection); Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985) (same). The statute at issue here reflects impermissible arbitrariness.
{¶ 62} Moreover, we are cognizant that the failure to include the relationship element in
{¶ 63} There is some indication that the legislature‘s omission of the relationship element might have been meant to ease the prosecutorial burden of proof. Ohio Senate Session, Dec. 16, 2008, available at http://www.ohiochannel.org/MediaLibrary/Media.aspx?fileId=117520, 39:10 to 39:20 (“the sponsor had some concerns with the prosecutors about the ability to prosecute under that section“). If that motive did in fact figure in the removal of that element, it may have been
{¶ 64} We must conclude that
{¶ 65} The state argues that in many other sexual encounters involving peace officers and minors, there will be such a connection, and that Mole therefore cannot prove that
{¶ 66} Ohio has codified the exception that dispenses with the necessity to prove scienter in sex offenses committed against victims under the age of consent. See, e.g.,
{¶ 67} But in
{¶ 68} The differential treatment of peace officers in this statutory scheme is based on an irrational classification. The statute not only fails to include any relationship or other element that justifies the omission of a scienter requirement but also disparately affects peace officers in a way that bears no rational relationship to the government‘s interest in protecting minors from sexual coercion by people in positions of authority who use that authority to compel submission. Having carefully considered the compelling interests at play here, the constitutional protections afforded our citizens, and the strong presumption of constitutionality that can be overcome only by a showing that the statute clearly and unequivocally violates the Constitution, we are compelled to conclude that
CONCLUSION
{¶ 69} We do not condone the conduct of appellee. Nor do we easily reach our conclusion that
{¶ 70} Although the government has a compelling interest in protecting minors from sexual coercion and an interest in prohibiting peace officers from abusing their authority in order to sexually exploit minors, the government cannot punish a class of professionals without making a connection between the classification
Judgment affirmed.
PFEIFER and O‘NEILL, JJ., concur.
LANZINGER, J., concurs in judgment only, with an opinion.
KENNEDY, J., dissents, with an opinion joined by O‘DONNELL, J.
FRENCH, J., dissents, with an opinion joined by O‘DONNELL, J.
LANZINGER, J., concurring in judgment only.
{¶ 71} “The decisions of the [United States Supreme] Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them.” (Footnote omitted.) Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 502 (1977).
{¶ 72} Based on the analysis that the Ohio Constitution is a document of independent force, I join the lead opinion in judgment only.
KENNEDY, J., dissenting.
{¶ 73} Respectfully, I dissent. Since 1895, we have held that the Ohio Equal Protection Clause provides the same protection as the federal Equal Protection Clause. See State ex rel. Schwartz v. Ferris, 53 Ohio St. 314, 41 N.E. 579 (1895), paragraph four of the syllabus. Today, the lead opinion, without any analysis of the differences in the text of those provisions or any consideration of the history of the Ohio and federal Equal Protection Clauses, departs from that century-old precedent and declares that the Ohio Equal Protection Clause affords more protection than the
{¶ 74} Absent a textual or historical analysis that demonstrates that we should depart from our longstanding precedent, there is no reason to do so today. Because the federal and Ohio Equal Protection Clauses afford the same protec
I. PRELIMINARY ISSUES
{¶ 75} I agree with the lead opinion‘s recitation of the facts. The lead opinion is also correct that the appropriate standard of review is the “rational-basis test” because
{¶ 76} I part with the lead opinion, however, in its declaration that
II. ANALYSIS
A. The Ohio Equal Protection Clause does not afford greater protection than the federal Equal Protection Clause
{¶ 77} The lead opinion declares the statute unconstitutional on the bases of the federal and Ohio Equal Protection Clauses, then concludes that even if it is wrong about the application of the
{¶ 78} In support of its decision, the lead opinion relies on Arnold v. Cleveland, 67 Ohio St.3d 35, 42, 616 N.E.2d 163 (1993). Arnold is the first case wherein this court interpreted the Ohio Constitution as providing greater protection than the federal Constitution. However, today‘s lead opinion fails to provide any of the careful analysis set forth in the Arnold opinion to justify its conclusion that the Ohio Constitution affords greater protection.
{¶ 79} In Arnold, we examined the right to bear arms in light of
{¶ 80} Arnold serves as the model for the type of the analysis this court should undertake when deciding whether the Ohio Constitution offers greater protection than the federal Constitution. However, this analytical framework is absent from the lead opinion.
{¶ 81} In lieu of a textual or historical analysis, the lead opinion cites five cases as authority for its position that this court “heeded the hortatory call to the new federalism.” Opinion at ¶ 16. I agree that those cases do indeed reflect the new federalism in that they conclude that a provision of the Ohio Constitution can afford greater protection than its federal counterpart. However, three of those cases involved a careful comparison and analysis of the text of the Ohio and federal provisions at issue, such as appeared in Arnold but not in today‘s lead opinion. The other two cases cited by the lead opinion, State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175, and State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, are highly distinguishable from the case here.
{¶ 82} In the three cases in which we proactively interpreted the Ohio Constitution to provide greater protection than the federal Constitution, or at least reserved the power to do so, we engaged in an Arnold analysis by examining the text and history of the provision before taking the formidable step of declaring that a provision of the Ohio Constitution is more protective.
{¶ 83} In Simmons-Harris v. Goff, 86 Ohio St.3d 1, 10, 711 N.E.2d 203 (1999), we examined the Establishment Clauses in the Ohio and federal Constitutions, and we concluded that the language in the Ohio clause is quite different from the federal. We also observed that while in the past we had discussed the Ohio and federal clauses together, “[t]here is no reason to conclude that the Religion Clauses of the Ohio Constitution are coextensive with those in the United States Constitution * * *” Id. As a result, we stated that we would not “irreversibly tie ourselves” to the United States Supreme Court‘s interpretation of the federal Establishment Clause. Id.
{¶ 84} In Humphrey v. Lane, 89 Ohio St.3d 62, 67, 728 N.E.2d 1039 (2000). We reached this conclusion because we determined that the phrase “nor shall any interference with the rights of conscience be permitted” is broader than the federal Constitution‘s prohibition against laws that prohibit the free exercise of religion. Id.
{¶ 85} Finally in Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115. We held that unlike the federal Constitution as interpreted by the United States Supreme Court, the Ohio Constitution prohibited government appropriation of private property when the sole justification was economic benefit to the community. Norwood at ¶ 75.
{¶ 86} The lead opinion‘s reliance on Farris and Brown is also misplaced. These two cases are highly distinguishable from the case at bar because both involved a reaffirmation of our view that the Ohio Constitution provides greater protection even after the United States Supreme Court narrowed the protections of the federal counterpart. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 48-49, and Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175, ¶ 22. The state is not arguing that an intervening case imposing a narrower, more restrictive interpretation of the federal Equal Protection Clause by the United States Supreme Court requires a similar restriction of the Ohio Equal Protection Clause.
{¶ 87} In Farris, we examined the admissibility in a criminal trial of physical evidence seized as a result of unwarned statements. Farris at ¶ 48. While acknowledging that such evidence would be admissible under the
{¶ 88} This holding was in response to the United States Supreme Court‘s decision in United States v. Patane, 542 U.S. 630, 631, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004), in which the court held that the failure to give Miranda warnings does not require the suppression of physical evidence seized from a suspect as a result of the unwarned voluntary statements. We decided Farris two years after Patane. We declined to follow the Patane court and declared that the Ohio Constitution provided greater protection to criminal defendants than the
{¶ 89} In Brown, our decision was in response to the United States Supreme Court‘s decision in Atwater v. Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001), which held that a warrantless arrest for a misdemeanor did not violate the
{¶ 90} Based on our precedent, in order to hold that the Ohio Constitution is more protective than the federal Constitution, the lead opinion needs to point to some language in
{¶ 91} It appears that the lead opinion‘s interpretation of
{¶ 92} The lead opinion acknowledges that we have previously held that the federal and Ohio Equal Protection Clauses are to be construed and analyzed identically, citing Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 60, 717 N.E.2d 286 (1999). However, the lead opinion does not distinguish that case from the present one in any way that would justify its departure from that holding. Instead, the lead opinion merely cites Arnold for the general proposition that “the Ohio Constitution is a document of independent force.” Lead opinion at ¶ 14. That statement is true enough, but hardly sufficient by itself. Moreover, the lead opinion is silent regarding our long line of precedent, beginning in 1895, holding that the protection provided by the Ohio Equal Protection Clause is identical to that provided by the
{¶ 93} In State ex rel. Schwartz v. Ferris, 53 Ohio St. at 341, 41 N.E. 579, we announced that the federal Equal Protection Clause was “not broader than the second section of our bill of rights.” In 1937, we again said that “the ‘equal protection of the law’ provision * * * is substantially the same as the guarantee in that respect contained in the
{¶ 94} Although the lead opinion ignores these cases, glaringly absent from the lead opinion is the rigorous three-step analysis required before this court may overturn a prior decision. Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, paragraph one of the syllabus.
{¶ 95} Rejecting 120 years of precedent and without any of the analysis reflected in Arnold, the lead opinion invalidates
B. R.C. 2907.03(A)(13) is not facially unconstitutional and survives rational-basis review
1. Facial challenges are disfavored
{¶ 96} The lead opinion concludes that
{¶ 97} Facial challenges are “contrary to the fundamental principle of judicial restraint.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). A facial challenge forces the court to “‘anticipate a question of constitutional law in advance of the necessity of deciding it‘” and to “‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.‘” Id. at 450, quoting Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), quoting Liverpool, New York & Philadelphia Steamship Co. v. Emigration Commrs., 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885). They raise the risk of a “‘premature interpretation of statutes’ on the basis of factually barebones records.” Sabri v. United States, 541 U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004), quoting United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). Because of the breadth of the remedy and the loosening of judicial restraint involved in facial constitutional litigation, courts disfavor facial challenges. Washington State Grange at 450. Courts do and should prefer as-applied challenges, which are the “basic building blocks of constitutional adjudication.” Gonzales v. Carhart, 550 U.S. 124, 168, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007), quoting Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv.L.Rev. 1321, 1328 (2000).
2. R.C. 2907.03(A)(13) is rationally related to a valid state interest
{¶ 98} When a statute is challenged as facially unconstitutional and when, as here, the standard of review is the rational-basis standard, the court must conduct a two-step analysis: “We must first identify a valid state interest. Second, we must determine whether the method or means by which the state has chosen to advance that interest is rational.” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 9, citing Buchman v. Wayne Trace Local School Dist. Bd. of Edn., 73 Ohio St.3d 260, 267, 652 N.E.2d 952 (1995); Pickaway Cty. Skilled Gaming, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 19. As to the first step, the lead opinion finds a valid state interest in play but concludes that the second step is not satisfied because the method or means chosen to advance the interest is not rational. I disagree.
{¶ 99} The second step in a rational-basis review requires us to determine whether the law is rationally related to a valid state interest. If a statute is challenged as facially unconstitutional, the challenger must demonstrate that the statute can never be applied in a manner that is rationally related to a valid state
Legislative enactments that do not involve a suspect classification are “presumptively rationally related to legitimate social and economic goals, unless the ‘varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature‘s actions were irrational.‘”
McCrone at ¶ 30, quoting State ex rel. Doersam v. Indus. Comm., 40 Ohio St.3d 201, 203, 533 N.E.2d 321 (1988), quoting Vance v. Bradley, 440 U.S. 93, 97, 99, 93 S.Ct. 939, 59 L.Ed.2d 171 (1979).
{¶ 100} There is a “strong presumption of validity” that the United States Supreme Court has repeatedly applied when a statute, challenged as unconstitutional, does not involve fundamental rights or a suspect classification. Fed. Communications Comm. v. Beach Communications, Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462-463, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988); Hodel v. Indiana, 452 U.S. 314, 331-332, 101 S.Ct. 2376, 69 L.Ed.2d 40 (1981); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314-315, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). While the lead opinion concludes that
{¶ 101} Like the United States Supreme Court, we too have held that it is not within the purview of rational-basis review to decide whether a statute is wise or misguided. We have observed:
The vast weight of authority requires that, when utilizing the “rational basis” test, the courts defer to the legislature on the issue of constitutionality. “We do not inquire whether this statute is wise or desirable * * * * * * Misguided laws may nonetheless be constitutional.”
{¶ 102} Additionally, “‘courts are compelled under rational-basis review to accept a legislature‘s generalizations even when there is an imperfect fit between means and ends.‘” Pickaway Cty. Skilled Gaming, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 32, quoting Am. Assn. of Univ. Professors, 87 Ohio St.3d at 58, 717 N.E.2d 286. Furthermore, a classification does not fail rational-basis review merely because it is not made with mathematical precision or because it results in some inequality. Id.
{¶ 103} The lead opinion concludes that
{¶ 104} Criminalizing sexual conduct between a peace officer and a minor is rationally related to a legitimate state interest because it punishes peace officers for conduct that if discovered would diminish them in the eyes of the community. If a peace officer discovered after the fact that the person with whom he engaged in sexual conduct was a minor, he would have a strong incentive to do whatever is necessary to ensure that his employer never found out, even to the point of compromising his integrity. Moreover, there is the potential for blackmail, which could lead to corrupt behavior or worse. These considerations demonstrate how the statute is rationally related to a legitimate government interest of protecting the public trust in peace officers by criminalizing conduct that is not only immoral but is fraught with the potential for corruption and exploitation.
{¶ 105} The lead opinion‘s argument at its core is simply that the statute is arbitrary because peace officers are held criminally liable for engaging in sexual
{¶ 106} Instead, the lead opinion focuses its analysis on why the statute is unconstitutional when applied to appellee and his circumstances. However, the lead opinion does not rebut the application of the statute to peace officers who do have some professional connection to the victim or to peace officers who meet a minor in the course of their duties as a peace officer after engaging in sexual conduct with the minor. The lead opinion merely states that the state is not required to prove a professional connection between the peace officer and victim because it is not an element of the offense.
{¶ 107} This reasoning fails because it shifts the burden of proving that the statute is unconstitutional in all circumstances from the party challenging the statute to the state. “[T]he challenger must establish that there exists no set of circumstances under which the statute would be valid.” Harrold, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. Appellee chose to mount a facial attack on the statute, so he must show that all applications of the statute bear no rational relation to any valid state interest. It is not the state‘s burden to introduce evidence to prove constitutionality.
{¶ 108} The lead opinion admits that the statute would be constitutional if the General Assembly had included a nexus between the peace officer‘s professional status and the minor with whom he engages in sexual conduct. However, the statute criminalizes this category of conduct between peace officers and minors as part of its broad prohibition against sexual conduct between peace officers and minors. The lead opinion admits that the statute would achieve its legitimate state interest by a rational means and method if applied to a peace officer who uses his professional status to initiate sexual conduct with a minor. Under the lead opinion‘s own reasoning, the statute is not “unconstitutional in all applications.” Oliver, 123 Ohio St.3d 278, 2009-Ohio-5030, 915 N.E.2d 1205, at ¶ 13. Therefore, the statute cannot be facially unconstitutional because it can be constitutionally applied in some instances. Id.
III. CONCLUSION
{¶ 109} Since 1895, we have held that the Ohio Equal Protection Clause provides the same protection as the federal Equal Protection Clause. Absent a
O‘DONNELL, J., concurs in the foregoing opinion.
FRENCH, J., dissenting.
{¶ 110} I dissent from the decision of a majority of this court that
{¶ 111} The lead opinion, while noting the presumption of constitutionality and deference afforded to legislative enactments under rational-basis review, has in fact applied an elevated level of judicial scrutiny. As the party invoking the extreme remedy of striking down an entire statute on its face, Mole must “negate every conceivable basis that might support the legislation.” Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 91. Mole has not met this very high burden.
{¶ 112} In its analysis, the lead opinion fails to consider applications of the statute that might support its validity, as rational-basis scrutiny requires. Instead, the lead opinion concludes that the imposition of criminal liability on peace officers under the circumstances in Mole‘s case—“when there is no occupation-based relationship between the officer and the victim“—violates equal protection. Lead opinion at ¶ 2. But the General Assembly enacted this law in the wake of State v. Stout, 3d Dist. Logan No. 8-06-12, 2006-Ohio-6089, 2006 WL 3350770, which arose when a detective allegedly used his position of trust to engage in sexual conduct with a 16-year-old victim and witness of a murder-suicide involving her family. Stout at ¶ 5. See also Ohio House Session, May 7, 2008, Am.Sub.H.B. No. 209, available at http://www.ohiochannel.org/video/house-session-may-7-2008 at 44:03.
{¶ 113} The Stout case demonstrates one set of circumstances falling under the legitimate sweep of the statute, that is, when a peace officer‘s unlawful sexual conduct with a minor relates directly to the officer‘s professional status. And because the statute has at least some valid application that is rationally related to a legitimate state interest, it must survive a facial challenge. Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio St.3d 278, 2009-Ohio-5030, 915 N.E.2d 1205, ¶ 13.
{¶ 114} The lead opinion also concludes that
{¶ 115} Rational-basis review, however, does not demand “mathematical exactitude,” New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976), and we are compelled under this deferential standard “‘to accept a legislature‘s generalizations even when there is an imperfect fit between means and ends.‘” Pickaway Cty. Skilled Gaming, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 32, quoting Am. Assn. of Univ. Professors, 87 Ohio St.3d 55, 58, 717 N.E.2d 286 (1999), quoting Fed. Communications Comm. v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). The General Assembly determined that the privilege of serving as a peace officer comes with the obligation to adhere to a higher standard of conduct both on and off duty. As permitted under rational-basis scrutiny, the legislature concluded that the benefits of prohibiting all such sexual encounters between peace officers and minors outweigh the risk of underinclusion.
{¶ 116} I would therefore conclude that
{¶ 117} I also dissent from the lead opinion‘s conclusion that the Ohio Constitution provides an independent basis to invalidate
{¶ 118} Even more puzzling, after declaring that
{¶ 119} For these reasons, I respectfully dissent.
O‘DONNELL, J., concurs in the foregoing opinion.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellant.
John Fatica and Richard J. Perez, for appellee.
Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and Kathryn L. Kreps, Assistant Attorney General, urging reversal for amicus curiae, Ohio Attorney General Michael DeWine.