2005 Ohio 6790 | Ohio Ct. App. | 2005
{¶ 2} R.C.
{¶ 3} R.C.
{¶ 5} Each of the defendants moved to dismiss his indictment, arguing that R.C.
{¶ 6} The trial court granted each defendant's motion to dismiss the indictment, concluding that R.C.
{¶ 8} "The trial court erred by granting Appellee's motion to dismiss the indictment based on a finding that Ohio Revised Code section
{¶ 9} The trial court granted the motions to dismiss the indictments because it concluded that R.C.
{¶ 10} "(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.
{¶ 11} "* * *
{¶ 12} "(F) As used in this section and sections
{¶ 13} "(1) `Family or household member' means any of the following:
{¶ 14} "(a) Any of the following who is residing or has resided with the offender:
{¶ 15} "(i) A spouse, a person living as a spouse, or a former spouse of the offender;
{¶ 16} "(ii) A parent or a child of the offender, or another person related by consanguinity or affinity to the offender;
{¶ 17} "(iii) A parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender.
{¶ 18} "(b) The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.
{¶ 19} "(2) `Person living as a spouse' means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question." R.C.
{¶ 20} According to the trial court, this statute violated a recent amendment to the Ohio Constitution, the Defense of Marriage Amendment of 2004. It provides:
{¶ 21} "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." Ohio Constitution, Article
{¶ 22} When addressing the constitutionality of a legislative act, a court must give the statute a presumption of constitutionality. State v. Hochhausler,
{¶ 23} There are two different ways of challenging a statute on constitutional grounds: 1) arguing that it is unconstitutional on its face or 2) arguing that it is unconstitutional as applied to a particular set of facts. Cleveland Gear Co. v. Limbach
(1988),
{¶ 24} In these cases, the defendants did not present a particular set of facts before challenging the constitutionality of R.C.
{¶ 25} "We consider the attack upon the constitutionality of those sections of the so-called Ohio Pyramid Sales Act in these cases to be upon the face of the subject statutes. There cannot be a constitutional challenge to any set of particular facts before the trial court here because it did not have any true evidence before it. The motions to dismiss were made before there was any trial, and although those motions were accompanied by transcripts of a tape ostensibly made sub rosa at the `pyramid' meeting attended by these defendants-appellees, said transcripts cannot in any way be considered trial evidence. Although defense counsel flirted with the concept of the constitutionality of R.C.
{¶ 26} "`4. A legislative act may be unconstitutional upon its face, or it may be valid upon its face but unconstitutional because of its operative effect upon a particular state of facts.
{¶ 27} "`* * *
{¶ 28} "`6. Where an act is challenged on the ground that it is unconstitutional when applied to a particular state of facts, the burden rests upon the party making such attack to present clear and convincing evidence of a presently existing state of facts which makes the act unconstitutional and void when applied thereto.
{¶ 29} "`7. Constitutional questions will not be decided until the necessity for such decision arises upon the record before the court. (State ex rel. Herbert v. Ferguson, Aud.,
{¶ 30} In these cases, we have even less "evidence" before us than the Ohio Supreme Court had in Beckley. In that case, the defendant had at least tried to produce some evidence in support of his claim that the statute was unconstitutional as it applied to him. In these cases, we have nothing more than the defendant's allegations within their motions regarding the facts of these cases. Without some kind of true evidence, we cannot determine the particular sets of facts present in these cases and, therefore, cannot determine whether this statute is unconstitutional as it applies to those particular sets of facts.
{¶ 31} Appellees have challenged the constitutionality of R.C.
{¶ 33} A facial constitutional challenge to a statute is to be decided by considering the Act itself without regard to extrinsic facts. Cleveland Gear at 231. "A facial challenge to a legislative act is the most difficult to mount successfully, since the challenger must establish that no set of circumstances exists under which the act would be valid." State v. Coleman
(1997),
{¶ 34} In this case, a facial challenge to R.C.
Donofrio, P.J., concurs.
Vukovich, J., concurs.