THE STATE OF OHIO, APPELLEE, v. NOLING, APPELLANT.
No. 2014-1377
Supreme Court of Ohio
December 21, 2016
2016-Ohio-8252
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
Michael J. Muldoon, for appellant.
Michael DeWine, Attorney General, and Eric J. Tarbox, Assistant Attorney General, for appellee Industrial Commission.
Dawson & Myers, L.L.C., and Shane M. Dawson, for appellee Galion Assisted Living, Ltd.
THE STATE OF OHIO, APPELLEE, v. NOLING, APPELLANT.
[2016-Ohio-8252.]
(No. 2014-1377—Submitted May 31, 2016—Decided December 21, 2016.)
O‘CONNOR, C.J.
RELEVANT BACKGROUND
{¶ 1} A jury found appellant, Tyrone Noling, guilty of the April 1990 aggravated murders of Bearnhardt and Cora Hartig in Portage County, Ohio. The trial
{¶ 2} Noling has made numerous applications for postconviction relief. This appeal arises from the Portage County Common Pleas Court‘s denial of his 2013 amended application for postconviction DNA testing pursuant to Ohio‘s statutory scheme,
{¶ 3} We accepted Noling‘s jurisdictional appeal from the judgment of the court of common pleas on the following proposition of law:
Ohio Revised Code 2953.73(E)(1) violates both the Eighth and Fourteenth Amendments of the United States Constitution as it: (1) discriminates between capital and non-capital criminal defendants, (2) fails to provide appellate review, and (3) results in the arbitrary and capricious application of the death penalty.Fourteenth Amendment to the United States Constitution andSection 16, Article I of the Ohio Constitution .
143 Ohio St.3d 1477, 2015-Ohio-3958, 38 N.E.3d 899.
{¶ 4} Although the parties’ briefs go into detail concerning the merits of the application for DNA testing, the question before us is a constitutional one concerning the statutory procedure for appealing the denial of an application for postconviction DNA testing, not the merits of Noling‘s application itself.
{¶ 5} The challenged statute,
{¶ 6} To “seek leave,” the capital offender must file a notice of appeal and memorandum in support of jurisdiction with this court.
{¶ 7} Noling argues that because the statutory scheme denies appeals of right to those sentenced to death while guaranteeing appeals to noncapital offenders, the scheme denies capital offenders their fundamental rights—specifically, their state and federal constitutional rights to due process and equal protection and the federal Constitution‘s prohibition against cruel and unusual punishment. The state counters that postconviction relief is civil in nature, not criminal, and thus, no fundamental right to appeal exists. The state further contends that the scheme is constitutionally permissible because the state has a rational basis for the statute‘s different appeal paths and because the Eighth Amendment to the United States Constitution does not require a specific appellate process for postconviction DNA-testing denials.
{¶ 8} We agree that
ANALYSIS
Standard of review
{¶ 9} We begin with the premise that statutes are presumed constitutional.
{¶ 10} To find a statute unconstitutional, we must determine “beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. “[D]oubts regarding the validity of a legislative enactment are to be resolved in favor of the statute.”
{¶ 11} Because the Equal Protection Clause of the Ohio Constitution is coextensive with, or stronger than, that of the federal Constitution, we cite both throughout this opinion. E.g., State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 14-23 (plurality opinion) (
Equal protection
{¶ 12} The federal Equal Protection Clause mandates that the state may not “deny to any person within its jurisdiction the equal protection of the laws.”
{¶ 13} “The Constitution‘s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” United States. v. Windsor, — U.S. —, 133 S.Ct. 2675, 2693, 186 L.Ed.2d 808 (2013), citing Dept. of Agriculture v. Moreno, 413 U.S. 528, 534-535, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). In other words, equal protection prohibits treating similar groups differently 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). “[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), and “a legislative classification must be reasonable, not arbitrary, and must bear a rational relationship to a permissible governmental objective,” Felske v. Daugherty, 64 Ohio St.2d 89, 92, 413 N.E.2d 809 (1980). See also Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). While the challenging party has the burden to negate “any reasonably conceivable state of facts that could provide a rational basis for the classification,” Fed. Communications Comm. v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993), the state must offer some “rational speculation” to support it. Id. at 315.
{¶ 14} “In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment * * * [courts] apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose.” Clark at 461.
{¶ 15} While asserting that
{¶ 16} This court has established that “a postconviction proceeding is not an appeal of a criminal conviction but rather, is a collateral, civil attack on a criminal judgment.” State v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 28, citing State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). And “[t]he right to file a postconviction petition is a statutory right, not a constitutional right.” Broom at ¶ 28. See also Murray v. Giarratano, 492 U.S. 1, 10, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989); Pennsylvania v. Finley, 481 U.S. 551, 554, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Steffen at 410. Because an appeal of the denial of postconviction DNA testing does not implicate a fundamental constitutional right, we do not apply strict scrutiny.
{¶ 17} Noling has offered no evidence that intermediate scrutiny, the next level of deference in equal-protection law, State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 13, should be applied in this case. Because this case is not entitled to elevated scrutiny, we apply the rational-basis test, the standard most deferential to the legislature. Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 32.
{¶ 18} Before we proceed to apply the test, we note that the attorney general, as amicus curiae, advances the argument that the rational-basis test is not applicable because capital and noncapital offenders are not similarly situated. As an initial matter, this court has previously held that “amici curiae are not parties to an action and may not, therefore, interject issues and claims not raised by parties.” State ex rel. Citizen Action for a Livable Montgomery v. Hamilton Cty. Bd. of Elections, 115 Ohio St.3d 437, 2007-Ohio-5379, 875 N.E.2d 902, ¶ 26, citing Lakewood v. State Emp. Relations Bd., 66 Ohio App.3d 387, 394, 584 N.E.2d 70 (8th Dist.1990). Although the state notes that this court has previously reasoned that “the reality is that capital and noncapital defendants were not treated similarly,” quoting Smith, 80 Ohio St.3d at 100, 684 N.E.2d 668, it does not directly argue that the rational-basis test is inapplicable. But even considering the attorney general‘s claims, we would still find capital and noncapital offenders similarly situated here.
{¶ 20} Moving to application of the rational-basis test, the Equal Protection Clause is satisfied if “there is a plausible policy reason for the classification.” Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). We may find a statute unconstitutional only if “the General Assembly‘s action lacked all rational relation to the legitimate state interest.” Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 72. Under this test, the Equal Protection Clause is satisfied if “there is a plausible policy reason for the classification.” Nordlinger at 11.
{¶ 21} In this case, we consider whether there exists a legitimate governmental purpose in affording noncapital defendants an appeal of right of the denial of their postconviction DNA-testing application but affording capital defendants only a discretionary appeal of the same denial. Although we apply the rational-basis test and give all due deference to the legislature, we are mindful that this case involves a person sentenced to death, and “the finality of the [death] sentence imposed warrants protections that may or may not be required in other cases.” Ake v. Oklahoma, 470 U.S. 68, 87, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (Burger, C.J., concurring).
Legitimate governmental purpose
{¶ 22} In its merit brief, the state offers the following purpose: “ensuring that the final judgments of its courts are expeditiously enforced.” Are we to take this to mean that expeditious enforcement of the death penalty is the guiding factor and goal? Are we to value speed over certainty? Chief among all cases that cry out for certainty are those that result in the extinguishing of a human life. If, however, the generic expeditious enforcement is the basis of the state‘s argument, even a cursory investigation reveals that this rationale is faulty. See State ex rel. Nyitray v. Indus. Comm., 2 Ohio St.3d 173, 176, 443 N.E.2d 962 (1983). Indeed, expedience is subverted by the statutory scheme.
{¶ 24} In contrast, an appeal as of right from a case originating in the court of appeals (the most similar appeal currently covered by the Supreme Court Rules of Practice) goes from judgment entry to merit briefing faster. For appeals of right from courts of appeals, an appellant must file a notice of appeal within 45 days of the entry of judgment, S.Ct.Prac.R. 6.01, and must file a merit brief within 40 days of the clerk‘s submission of the record, S.Ct.Prac.R. 16.02. Although the rules do not specify a time limit for filing the record, assuming it takes the 20 days permitted in a discretionary appeal, this court would still have a merit brief in 105 days in an appeal of right, at least a month faster than one would even potentially be filed in a discretionary appeal. If the state‘s legitimate interest is in expeditious enforcement of judgments, that interest is better advanced by permitting capital offenders an appeal of right. We find that providing only a discretionary appeal is not rationally related to the governmental purpose of expeditiously enforcing final judgments and, accordingly, the law does not meet the rational-basis test and violates both the federal and state equal-protection clauses.
Attorney general‘s rational-basis claims
{¶ 25} As with the attorney general‘s claim that capital and noncapital offenders are not similarly situated, we need not address the attorney general‘s suggestions of additional legitimate governmental purposes underlying
{¶ 26} First, the attorney general suggests that the appellate process in
{¶ 27} Second, the attorney general suggests that the General Assembly drafted the process to accord with ambiguous constitutional text that requires Supreme Court review “in cases in which the death penalty has been imposed.”
{¶ 28} Third, the attorney general suggests that distinct review paths are appropriate because capital offenders have broader access to testing. Capital offenders are permitted to seek postconviction DNA testing related to the offense itself or to aggravating circumstances supporting the capital sentence, while noncapital offenders are limited to the former.
{¶ 29} Fourth, the attorney general suggests that the discretionary-appeal process is less susceptible to delay. We have already concluded that discretionary review significantly increases the average amount of time a case is pending before disposition as compared to an appeal of right, so this rationale is faulty.
{¶ 30} Finally, the attorney general suggests that the single-tier system of review promotes consistency, given that the Supreme Court is responsible for handling direct appeals of death-penalty cases. We agree, but we identify the relevant disparate treatment to be not the lack of an appeal to the court of appeals, but instead the denial of direct appeal to the Supreme Court for capital offenders. We see no means by which discretionary review promotes consistency, given that we do not have discretion to reject a challenge to a conviction imposing the death sentence.
{¶ 31} Finding no legitimate purpose in a two-track appellate process that discriminates between capital and noncapital offenders, we hold that
Eighth Amendment
{¶ 32} The United States Supreme Court has ruled that the Eighth Amendment prohibition against cruel and unusual punishment is not violated when a capital offender has no opportunity for postconviction relief. Specifically, in finding no Eighth Amendment violation, the court noted that “[s]tate collateral proceedings are not constitutionally required as an adjunct to the state criminal proceedings.” Murray, 492 U.S. at 10, 109 S.Ct. 2765, 106 L.Ed.2d 1. Even here, where we have determined that capital offenders have a state-created liberty interest in postconviction DNA testing, we cannot find that the interest broadens the protections of the Eighth Amendment beyond the bounds set by the Supreme Court. Because the high court has held that imposition of the death penalty is not arbitrary and egregious, even without the option of postconviction relief, we likewise hold that a statute that provides for postconviction relief, even without effective opportunity for appeal, is not arbitrary and egregious.
Remedy
{¶ 33} As discussed above, we do not hold that the entire postconviction DNA-testing statute is unconstitutional. Our holding is limited to the portion of the statute that affords capital offenders a discretionary appeal instead of an appeal as of right.
{¶ 34} Ohio law establishes a three-part test to determine whether an invalid portion of a statute can be severed or the entire law must be struck down:
“(1) Are the constitutional and the unconstitutional parts capable of separation so that each may be read and may stand by itself? (2) Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out? (3) Is the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part, and to give effect to the former only?”
Geiger v. Geiger, 117 Ohio St. 451, 466, 160 N.E. 28 (1927), quoting State v. Bickford, 28 N.D. 36, 147 N.W. 407, 409 (1913).
{¶ 36} In this case, we conclude that severance of the offending portion of the statute is proper under Geiger.
Severance of R.C. 2953.73(E)
{¶ 37} The first question requires us to determine whether the constitutional parts of the statute may be read and stand by themselves following the severance. State ex rel. Maurer v. Sheward, 71 Ohio St.3d 513, 523, 644 N.E.2d 369 (1994).
{¶ 38} The sentence at issue is found in
{¶ 39} Removing the unconstitutional language concerning a discretionary appeal simply leaves capital offenders with an appeal of right, and the severed statute is readily comprehensible. The answer to the first Geiger question is yes.
{¶ 40} As to the second question, we conclude that the unconstitutional part of the statute is not so connected with the general scope of the whole as to make it impossible to give effect to the apparent intent of the legislature if the clause is stricken. The purpose of the statute is to outline the procedure for postconviction DNA testing, and the purpose of this specific section is to describe appellate rights.
{¶ 41} The right to an appeal was apparently very important to the legislature, such that it added an appeal provision prior to passage of the law. As introduced, S.B. 11 provided that “[a] judgment of a court entered under division (E) of this section is final and is not appealable by any person to any court.” But
{¶ 42} The severance we perform modifies the appeal process for a very limited number of eligible offenders. It does not impact the statute‘s overall goal of setting forth a scheme for postconviction DNA testing or the provision‘s specific goal of providing a limited appellate process for offenders. The answer to the second Geiger question is no.
{¶ 43} The third question queries whether it is necessary to insert any words or terms to give effect to the constitutional part of the statute. In this case, only severance is necessary to render the statute constitutional and, as discussed in relation to the first question, the remaining clause is coherent and effective in its own right. The answer to the third Geiger question is no.
Constitutionality of severed R.C. 2953.73(E)
{¶ 44} Having excised the offending language in accordance with Geiger, we conclude that the statute is rendered constitutional. By providing an appeal of right to capital offenders, the revised statute avoids equal-protection violations by providing both capital and noncapital offenders the right to an appellate review and permits the state to achieve its objective of efficient enforcements of judgments by removing an often lengthy jurisdictional-review period. For the reasons that we articulated in Smith, 80 Ohio St.3d at 100-102, 684 N.E.2d 668, we reiterate that providing those convicted of capital crimes with a single appeal of right while granting those convicted of noncapital crimes an appeal of right and a possible discretionary appeal is not unconstitutional.
{¶ 45} Relying on our opinion in State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, the dissent states that “[t]he duty to review error allegedly occurring in postconviction proceedings in death-penalty cases belongs in the first instance to the appellate courts of this state.” Dissenting opinion at ¶ 79. In dicta, Davis states that “[a] holding that the Supreme Court has exclusive jurisdiction over all matters relating to a death-penalty case would be contrary” to the Constitution. (Emphasis sic.) Id. at ¶ 22. Our holding today is not contrary to Davis. Indeed, we have already considered the narrower question of whether
The remedy is sound
{¶ 46} The dissent makes two related objections to this reasonable, limited remedy: that the remedy rewrites the statute and that the remedy is contrary to the court‘s previous use of the severance remedy. The dissent also rejects the notion that in applying the severance remedy, we should, whenever possible, respect the role of the legislature by limiting our severance to only those unconstitutional portions of the statute in order to most effectively preserve the General Assembly‘s goal. We address these arguments in turn.
{¶ 47} Foremost, the remedy does not rewrite the statute. The dissent disputes that we can sever only a portion of
{¶ 48} The dissent cites dicta in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 100-102, abrogated in part on other grounds by Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), and states that “we should resist the temptation to reconfigure by judicial fiat” the statute. Dissenting opinion at ¶ 84. But the dissent‘s words again belie our actions. Just as our remedy requires no rewriting, it also requires no reconfiguring. Consistent with Geiger, the remedy deletes the words of the unconstitutional provision but neither adds words to nor removes words from the constitutional portions. The General Assembly‘s original words remain, in their original order. We have merely excised text, pursuant to the guidance of Geiger.
{¶ 49} Next, the remedy is in accordance with our precedent. The dissent recognizes, dissenting opinion at ¶ 71, that the court has severed portions of a statute on a number of occasions. State ex rel. Sunset Estate Properties, L.L.C. v. Lodi, 142 Ohio St.3d 351, 2015-Ohio-790, 30 N.E.3d 934, ¶ 18; Cleveland v. State, 138 Ohio St.3d 232, 2014-Ohio-86, 5 N.E.3d 644, ¶ 20-21; Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 127; State v. Hochhausler, 76 Ohio St.3d 455, 464, 668 N.E.2d 457 (1996); Hausman v. Dayton, 73 Ohio St.3d 671, 679, 653 N.E.2d 1190 (1995); Maurer, 71 Ohio St.3d at 523-524, 644 N.E.2d 369; State ex rel. Doersam v. Indus. Comm., 45 Ohio St.3d 115, 122, 543 N.E.2d 1169 (1989).
{¶ 51} Finally,
{¶ 52} We have reiterated the primacy of preserving the legislature‘s intent on a number of occasions. In Doersam, we recognized “our obligation to preserve as much of the General Assembly‘s handiwork as is constitutionally permissible.” Id. at 121. And in Foster, we emphasized that goal on at least three occasions. First, we recognized that “[e]xcising the unconstitutional provisions does not detract from the overriding objectives of the General Assembly.” 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at ¶ 98. Next, we noted, “Significantly, the severance remedy preserves ‘truth in sentencing,’ a fundamental element” of Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136. Id. at ¶ 101. And finally, we admired the remedy:
Severance also is the remedy that will best preserve the paramount goals of community safety and appropriate punishment and the major elements of our sentencing code. Removing presumptive terms and preserving the remainder of the sentencing provisions of the code will most effectively preserve the General Assembly‘s goal of truth in sentencing.
Id. at ¶ 102. Just as the court attempted to apply the severance remedy in Foster in a way that preserved the General Assembly‘s intent, we endeavor to give effect to the legislature‘s intent by carefully excising only those provisions of the statute that are unconstitutional and can be severed.
{¶ 53} Conversely, the dissent‘s proposed severance of
{¶ 54} As the Eighth District Court of Appeals explained in State v. Montgomery:
The first sentence of
R.C. 2953.73 makes it clear thatR.C. 2953.71 to2953.84 govern the appealability of orders entered in such proceedings: “A judgment and order of a court entered under division (D) of this section [concerning a court‘s determination to accept or reject an application for DNA testing] is appealable only as provided in this section.” * * * [W]e find that only the defendant whose application for DNA testing has been rejected is permitted to appeal.R.C. 2953.73(E) provides that if the trial court rejects an application for DNA testing, the defendant can appeal by leave of court to the supreme court in a death penalty case; in any other case, the defendant can appeal as of right to the relevant court of appeals. There is no provision for an appeal by the state.
(Brackets sic.) 8th Dist. Cuyahoga No. 97143, 2012-Ohio-1640, 2012 WL 1252627, ¶ 12-13.
{¶ 55} By entirely severing
{¶ 56} The dissent posits that the state‘s right to appeal would arise in
{¶ 57} Because the dissent‘s remedy fails to satisfy the second part of the Geiger test, it is unworkable. The dissent‘s strict adherence to its own faulty interpretation of the Geiger test would render it necessary for us to strike down the entire postconviction DNA-testing statute. See State ex rel. Whitehead v. Sandusky Cty. Bd. of Commrs., 133 Ohio St.3d 561, 2012-Ohio-4837, 979 N.E.2d 1193, ¶ 40-41.
Severance of R.C. 2953.72(A)(8)
{¶ 58} Because we sever the challenged portion of
{¶ 59} Pursuant to this section, the offender acknowledges that “the offender may seek leave of the supreme court to appeal the rejection to that court if the offender was sentenced to death for the offense for which the offender is requesting the DNA testing and, if the offender was not sentenced to death for that offense, may appeal the rejection to the court of appeals.”
{¶ 60} Specifically, by severing the text that reads “seek leave of the supreme court to” and “to that court if the offender was sentenced to death for the offense for which the offender is requesting the DNA testing and, if the offender was not sentenced to death for that offense, may appeal the rejection to the court of appeals,” the section is left with the direction that “the offender may appeal the rejection.” The revised
{¶ 61} Without undertaking a Geiger analysis, the dissent states that it would sever all of
{¶ 62}
[T]he court of common pleas has the sole discretion subject to an appeal as described in this division to determine whether an offender is an eligible offender and whether an eligible offender‘s application for DNA testing satisfies the acceptance criteria described in division (A)(4) of this section and whether the application should be accepted or rejected *** [and] *** no determination otherwise made by the court of common pleas in the exercise of its discretion regarding the eligibility of an offender or regarding postconviction DNA testing under those provisions is reviewable by or appealable to any court.
[A]n offender who participates in any phase of the mechanism contained in [
R.C. 2953.71 to2953.81 ], including, but not limited to, applying for DNA testing and being rejected, having an application for DNA testing accepted and not receiving the test, or having DNA testing conducted and receiving unfavorable results, does not gain as a result of the participation any constitutional right to challenge, or, except as provided in division (A)(8) of this section, any right to any review or appeal of, the manner in which those provisions are carried out.
{¶ 63}
CONCLUSION
{¶ 64} We hold that
Judgment accordingly.
PFEIFER, LANZINGER, and MOORE, JJ., concur.
O‘DONNELL, J., dissents, with an opinion joined by KENNEDY and FRENCH, JJ.
CARLA D. MOORE, J., of the Ninth Appellate District, sitting for O‘NEILL, J.
O‘DONNELL, J., dissenting.
{¶ 65} Respectfully, I dissent.
{¶ 66} At issue here are the provisions of
{¶ 67}
A judgment and order of a court entered under division (D) of this section is appealable only as provided in this division. If an eligible offender submits an application for DNA testing under
section 2953.73 of the Revised Code and the court of common pleas rejects the application under division (D) of this section, one of the following applies:(1) If the offender was sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing, the offender may seek leave of the supreme court to appeal the rejection to the supreme court. Courts of appeals do not have jurisdiction to review any rejection if the offender was sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing.
(2) If the offender was not sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing, the rejection is a final appealable order, and the offender may appeal it to the court of appeals of the district in which is located that court of common pleas.
{¶ 68} I agree with the majority that this statute is unconstitutional because it creates different appellate remedies for capital and noncapital offenders: capital offenders may seek leave to appeal to the Ohio Supreme Court, but noncapital offenders may appeal to a district court of appeals as of right. However, I dissent from the remedy imposed by the majority to selectively sever words, not provisions, from the statute, changing the discretionary appeal to the supreme court intended by the General Assembly into a direct appeal to this court.
Severance
{¶ 69}
If any provision of a section of the Revised Code or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the section or related sections which can be given effect without the invalid provision or application, and to this end the provisions are severable.
Thus, our role in applying the severance remedy is to determine whether we can give effect to the statute “without the invalid provision.”
{¶ 70} But the authority to sever the unconstitutional part of a statute does not give this court license to rewrite it by selectively deleting words to change the
{¶ 71} The majority notes that “the court has severed portions of a statute on a number of occasions.” Majority opinion at ¶ 49. That may be true, but that does not justify selectively deleting words to rewrite the statute that the legislature enacted. Notably, the court in Sunset Estate Properties, 142 Ohio St.3d 351, 2015-Ohio-790, 30 N.E.3d 934, ¶ 18, Cleveland, 138 Ohio St.3d 232, 2014-Ohio-86, 5 N.E.3d 644, ¶ 20-21, Norwood, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 127, and Hochhausler, 76 Ohio St.3d 455, 464, 668 N.E.2d 457 (1996), deleted whole sentences from the statute. And while the court in Hausman, 73 Ohio St.3d 671, 679, 653 N.E.2d 1190 (1995), and Maurer, 71 Ohio St.3d 513, 523-524, 644 N.E.2d 369 (1994), struck words, it did so to eliminate one or more terms in a series that were unconstitutional while allowing the valid provisions to remain. In each of these cases, the court struck the invalid provisions in their entirety.
{¶ 72} The majority, however, now asserts that in applying the severance remedy, the court must, “whenever possible,” respect the role of the legislature to create laws by saving as much of a statutory scheme as possible through severing what is unconstitutional and allowing what is not to remain. Majority opinion at ¶ 46. That test, however, has never been part of our jurisprudence until today.
{¶ 73} In Cleveland v. State, for example, the court invalidated a provision of former
Any person, firm, copartnership, voluntary association, joint-stock association, company, or corporation, wherever organized or incorporated, that is engaged in the towing of motor vehicles is subject to regulation by the public utilities commission as a for-hire motor carrier under this chapter. Such an entity is not subject to any ordinance, rule, or resolution of a municipal corporation, county, or township that provides for the licensing, registering, or regulation of entities that tow motor vehicles.
2012 Am.Sub.H.B. No. 487.
{¶ 74} We held that the first sentence of the statute was constitutional but that the second sentence was not, because it “unconstitutionally limits municipal home-rule authority.” Cleveland, 138 Ohio St.3d 232, 2014-Ohio-86, 5 N.E.3d 644, at ¶ 17. Applying the majority‘s novel severance remedy advanced today, we could have saved as much of a statutory scheme as possible by simply deleting the word “not” from the second sentence of former
{¶ 75} The majority points to a case supporting its novel position, State ex rel. Doersam v. Indus. Comm., 45 Ohio St.3d 115, 543 N.E.2d 1169 (1989). In Doersam, the court held that an amendment to
{¶ 76} Doersam was wrongly decided and represents a blatant exercise of judicial activism. As Justice Wright indicated in his separate opinion, the majority‘s approach, “well meaning though it may be,” id. at 124 (Wright, J., concurring in part and dissenting in part), failed to recognize the difference between severing a part of a statute—leaving any remedy to the wisdom of elected lawmakers—and amending it by judicial fiat. In his view, “the entire [provision] must be stricken rather than the court picking and choosing words to delete.” Id. at 123. And because it was the entire amendment that violated equal protection, it was the entire amendment that had to be severed.
{¶ 77} In this case, the invalid provision to be severed is the entirety of
{¶ 78} Thus, contrary to its claim to the contrary, it is the majority‘s remedy that fails the severance test established in Geiger v. Geiger, 117 Ohio St. 451, 466, 160 N.E. 28 (1927). The threshold question in that test is, ” ‘Are the constitutional and the unconstitutional parts capable of separation so that each may be read and may stand by itself?’ ” (Emphasis added.) Id., quoting Bickford, 28 N.D. 36, 147 N.W. 407, 409 (1913). The point of the first prong of the Geiger test
{¶ 79} Further, severance is appropriate only if it serves and effectuates legislative intent. The majority, however, only speculates that the General Assembly, if it had foreseen our decision today, would have provided a direct appeal as of right to our court rather than a direct appeal to the courts of appeals, which the legislature has afforded to all other offenders requesting DNA testing as well as all those seeking postconviction relief. The duty to review error allegedly occurring in postconviction proceedings in death-penalty cases belongs in the first instance to the appellate courts of this state. See generally Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516.
{¶ 80} The majority claims that severing
{¶ 81} There is a difference between a severance that makes preexisting law applicable and a severance that rewrites a statute by selectively deleting its words to reach a specific result, and that distinction is respected by our case precedent.
{¶ 82} For instance, the majority cites State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, as an example of the court‘s respecting the role of the legislature to create laws by saving as much of a statutory scheme as possible through severing what is unconstitutional and allowing what is not to remain. Majority opinion at ¶ 52. But in Foster, we concluded that various provisions of Am.Sub.S.B. No. 2 (“S.B. 2“), 146 Ohio Laws, Part IV, 7136, violated the Sixth Amendment right to a jury trial and held that these “sections are severed and excised in their entirety.” (Emphasis added.) Foster at ¶ 97. The Foster remedy similarly reinstated preexisting law, such as the common law presumption that multiple sentences run consecutively, filling the gaps left when we severed the invalid provisions of S.B. 2. See State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 16, 18.
{¶ 83} In applying the severance remedy in Foster, we explicitly sought to uphold the legislative intent of the General Assembly in enacting S.B. 2, and we decided that “[r]emoving presumptive terms and preserving the remainder of the sentencing provisions of the code will most effectively preserve the General
{¶ 84} In my view,
A holding that the Supreme Court has exclusive jurisdiction over all matters relating to a death-penalty case would be contrary to the language of the constitutional amendments and the statute and would have the effect of delaying the review of future cases, a scenario that the voters expressly rejected in passing the constitutional amendments. We see no reason why the courts of appeals may not currently entertain all appeals from the denial of postjudgment motions in which the death penalty was previously imposed.
(Emphasis sic and footnote omitted.) Id. at ¶ 22.
{¶ 85} For these reasons, I would sever the provisions of
KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela Holder, Assistant Prosecuting Attorney, for appellee.
Ohio Innocence Project and Mark Godsey; and Timothy Young, Ohio Public Defender, and Carrie Wood, Assistant Public Defender, for appellant.