THE STATE OF OHIO, APPELLANT, v. ROMAGE, APPELLEE.
Nos. 2012-1958 and 2012-2042
Supreme Court of Ohio
Submitted October 9, 2013-Decided March 6, 2014.
138 Ohio St.3d 390, 2014-Ohio-783
Baker & Hostetler, L.L.P., Thomas D. Warren, Brett A. Wall, Patrick T. Lewis, and Dustin M. Dow, for appellant.
Vorys, Sater, Seymour & Pease, L.L.P., John J. Kulewicz, and Jeffery E. Smith; and Jeffrey D. Quayle, urging reversal for amicus curiae, Ohio Bankers League.
{1} In this case, we must determine the constitutionality of
I. Introduction
{2} Appellee, Jason Romage, was charged with criminal child enticement, a violation of
{3} Before trial, Romage filed a motion to dismiss the complaint attacking the criminal child-enticement statute on grounds that it was overbroad. Romage cited decisions of appellate courts in Ohio that had struck down
{4} The Tenth District Court of Appeals upheld the judgment of the trial court, holding that
{5} The Tenth District certified that its judgment conflicted with the judgment of the First District Court of Appeals in State v. Clark, 1st Dist. Hamilton No. C-040329, 2005-Ohio-1324, 2005 WL 678565. We agreed that a conflict exists on the issue whether
II. Analysis
{6} The state, as appellant, argues that the court of appeals erred in its judgment because
Burden of proof in a facial challenge
{7} We acknowledge at the outset that enactments of the General Assembly enjoy a strong presumption of constitutionality. State ex rel. Jackman v. Cuyahoga Cty. Court of Common Pleas, 9 Ohio St.2d 159, 161, 224 N.E.2d 906 (1967). Thus, a statute will be upheld unless proven beyond a reasonable doubt to be unconstitutional. State v. Warner, 55 Ohio St.3d 31, 43, 564 N.E.2d 18 (1990), citing State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. Facial challenges present a higher hurdle than as-applied challenges because, in general, for a statute to be facially unconstitutional, it must be unconstitutional in all applications. Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio St.3d 278, 2009-Ohio-5030, 915 N.E.2d 1205, 13.
{8} An exception to the general rule of presumed constitutionality is recognized for laws so broadly written that they “may have such a deterrent effect on free expression that they should be subject to challenge even by a party whose own conduct may be unprotected.” Members of Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). This exception is known as the overbreadth doctrine. For a statute to be facially invalid on overbreadth grounds, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Id. at 801.
“A clear and precise enactment may * * * be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.” [Grayned v. Rockford], 408 U.S. [104,] 114, 92 S.Ct. [2294,] 33 L.Ed.2d [222 (1972)]. In considering an overbreadth challenge, the court must decide “whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments.” Id., 408 U.S. at 115, 92 S.Ct. at 2302, 33 L.Ed.2d at 231.
Akron v. Rowland, 67 Ohio St.3d 374, 387, 618 N.E.2d 138 (1993). A statute will be invalidated as overbroad only when its overbreadth has been shown by the defendant to be substantial. New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). We recognize that in construing legislative enactments, courts are bound to interpret them in such a way that they are
The purpose and effect of the criminal child-enticement statute
{9} The statute at issue in this case,
No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including entering into any vehicle or onto any vessel, whether or not the offender knows the age of the child, if both of the following apply:
(1) The actor does not have express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity.
(2) The actor is not a law enforcement officer, medic, firefighter, or other person who regularly provides emergency services, and is not an employee or agent of, or a volunteer acting under the direction of, any board of education, or the actor is any of such persons, but, at the time the actor undertakes the activity, the actor is not acting within the scope of the actor‘s lawful duties in that capacity.
(Emphasis added.)
{10} In other words, anyone other than the legal custodian of a child, those listed in subsection (A)(2), or those who have the legal custodian‘s express permission who asks a child under 14 to go with him or her risks a criminal charge. Undoubtedly,
{11} Romage argues that this statute criminalizes many innocent acts, and in so arguing, he specifically points to the statute‘s use of the word “solicit.” “The common, ordinary meaning of the word ‘solicit’ encompasses ‘merely asking.‘” State v. Carle, 11th Dist. Ashtabula No. 2007-A-0008, 2007-Ohio-5376, 2007 WL 2909750, at 17, citing Black‘s Law Dictionary 1427 (8th Ed.2004).
{12} Under the statute, each of the following scenarios could result in a criminal charge: a primary-school coach offering to drive a team member home to retrieve a forgotten piece of practice equipment; a parent at a community facility offering to drive another‘s child home so she does not have to walk; a senior citizen offering a 13-year-old neighborhood child money to help with household chores; a 14-year-old asking his 12-year-old friend to go for a bike ride.
The state‘s two proposals
{13} The state argues that
{14} Even if we were to employ a more narrow definition of “solicit,”
The possibility of severance
{15} As an alternative to narrowly construing the word “solicit,” the state argues that the court could sever the word from the statute and thereby save the statute from being overbroad. The severance test was first pronounced by this court in Geiger v. Geiger, 117 Ohio St. 451, 466, 160 N.E. 28 (1927). Three questions are to be answered in determining whether severance is appropriate:
“(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?”
Id., quoting State v. Bickford, 28 N.D. 36, 147 N.W. 407 (1913), paragraph nineteen of the syllabus. Severance is appropriate only when the answer to the first question is yes and the answers to the second and third questions are no. After examining
{16} Even if the word “solicit” were severed, the remaining language—that no person may “coax, entice, or lure any child * * * in any manner“—still encompasses a wide range of innocent and protected conduct. An elderly person offering a child under 14 years old money to come with her to help with chores is more than merely asking, and this activity would arguably constitute coaxing, enticing, or luring. See Chapple, 175 Ohio App.3d 658, 2008-Ohio-1157, 888 N.E.2d 1121, 17. In other words, severance of the single word does not
{17} The First District‘s judgment that was certified as being in conflict with the judgment in this case held that
{18} Appellate courts other than the First District have addressed the constitutionality of
III. Conclusion
{19}
Judgment affirmed.
O‘CONNOR, C.J., and FRENCH, J., dissent.
FRENCH, J., dissenting.
{20} In my view, this court can, and should, avoid declaring
{21} Under its broadest reading,
{22} To strike down
{23} The majority is silent as to why the speech subject to
{24} In conclusion, I would answer the certified-conflict question in the negative and reverse the judgment of the court of appeals. Because the majority has concluded otherwise, I dissent.
O‘CONNOR, C.J., concurs in the foregoing opinion.
Richard C. Pfeiffer Jr., Columbus City Attorney, Lara N. Baker-Moorish, City Prosecuting Attorney, and Melanie R. Tobias, Director of Criminal Appeals Unit, for appellant.
Riddell Law, L.L.C., Douglas E. Riddell Jr., and Bridget Purdue Riddell, for appellee.
Ron O‘Brien, Franklin County Prosecuting Attorney, Steven L. Taylor, Chief Counsel, Appellate Division, and Laura R. Swisher, Assistant Prosecuting Attorney, urging reversal for amici curiae Ohio Prosecuting Attorneys Association and Franklin County Prosecuting Attorney Ron O‘Brien.
Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant State Public Defender, urging affirmance for amicus curiae Office of the Ohio Public Defender.