Akron v. Rowland

• Decision Date: 22 September 1993
• Docket Number: No. 92-1120,92-1120
• Citation: 67 Ohio St.3d 374,618 N.E.2d 138
• Parties: , 62 USLW 2220 CITY OF AKRON, Appellee, v. ROWLAND, Appellant.
• Court: Ohio Supreme Court

Page 374

67 Ohio St.3d 374

618 N.E.2d 138, 62 USLW 2220

CITY OF AKRON, Appellee, v. ROWLAND, Appellant.

No. 92-1120.

Supreme Court of Ohio.

Submitted April 28, 1993.

Decided Sept. 22, 1993.

Douglas J. Powley, Chief City Prosecutor, Bruce D. Kelley, Asst. City Prosecutor, and Max Rothal, Director of Law, Akron, for appellee.

J. Dean Carro and Joseph Kodish, Akron, for appellant.

Kevin Francis O'Neill, Dayton, urging reversal for amicus curiae, American Civil Liberties Union of Ohio Foundation, Inc. WRIGHT, Justice.

I

A. History of Loitering Laws

Loitering and vagrancy laws have a long and troubling history in Anglo-American jurisprudence. Vagrancy laws existed in England as early as the seventh century in the form of "poor laws." See Comment, The Third Generation of Loitering Laws Goes to Court: Do Laws That Criminalize "Loitering with the Intent to Sell Drugs" Pass Constitutional Muster? (1993), 71 N.C.L.Rev. 513, 515. Poor laws were instituted for economic reasons: they criminalized the status of unemployment in an attempt to ensure that peasant-class laborers would be unable to leave the employ of their feudal masters for higher paying jobs. Id.; Comment, Is There Something Suspicious About the Constitutionality of Loitering Laws? (1989), 50 Ohio St.L.J. 717, 717-718. Notable among the early poor laws was the Statute of Laborers, which was "designed to stabilize the labor force by prohibiting increases in wages and prohibiting the movement of workers from their home areas in search of improved conditions." Papachristou v. Jacksonville (1972), 405 U.S. 156, 161, 92 S.Ct. 839, 842, 31 L.Ed.2d 110, 115.

When it became apparent that such laws did not effectively control the labor market, they were "redirected to crime prevention." Comment, supra, 71 N.C.L.Rev. at 516. See Papachristou, supra, 405 U.S. at 161-162, 92 S.Ct. at 842-843, 31 L.Ed.2d at 115. In England, vagrancy was criminalized on the theory that people not visibly employed were more likely to commit crimes. Comment, supra, 71 N.C.L.Rev. at 516. This theory and the statutes which embodied it were brought to America from England and were enforced well into the twentieth century. Comment, supra, 50 Ohio St.L.Rev. at 718. "When these laws finally made their way to early America, they did so under 'the theory that society must have a means of removing the idle and undesirable from its midst before their potential for criminal activity is realized.' " Id. (quoting Note, Homelessness in a Modern Urban Setting [1982], 10 Fordham Urb.L.Rev. 749, 756).

In the 1970s and 1980s, however, most American vagrancy laws were held unconstitutional by the United States Supreme Court. The most celebrated vagrancy case decided by the court was Papachristou v. Jacksonville, supra. In Papachristou, the court considered the constitutionality of a Jacksonville ordinance that was "derived from early English law" and employed the same "archaic language." Id. at 161, 92 S.Ct. at 842, 31 L.Ed.2d at 114. The ordinance penalized, among others, "rogues and vagabonds," "dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, * * * persons wandering or strolling around from place to place without any lawful purpose or object, [and] habitual loafers * * *." Id. at 156-157, 92 S.Ct. at 840, 31 L.Ed.2d at 112, fn. 1. Finding the ordinance to be vague, the court unanimously held that enforcement of the ordinance violated the Due Process Clause of the Fourteenth Amendment. Writing for the court, Justice William O. Douglas observed that the "Jacksonville ordinance makes criminal activities which by modern standards are normally innocent." Id. at 163, 92 S.Ct. at 844, 31 L.Ed.2d at 116. Not only were many of the activities innocent but, as Justice Douglas explained, some had been woven into the fabric of American life:

"The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence." Id. at 164, 92 S.Ct. at 844, 31 L.Ed.2d at 117.

The court held that the Jacksonville ordinance was unconstitutionally vague both because it did not give ordinary people notice of what conduct was prohibited and because it gave the police unfettered discretion to make arrests.

In Kolender v. Lawson (1983), 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903, the Supreme Court reaffirmed the basic principles expounded in Papachristou. The court declared unconstitutional a California statute that made it illegal for a person to "loiter[ ] or wander[ ] upon the streets or from place to place without apparent reason or business and * * * refuse[ ] to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification." Id. at 353, 103 S.Ct. at 1856, 75 L.Ed.2d at 906, fn. 1. "Our Constitution is designed to maximize individual freedoms within a framework of ordered liberty," the court wrote, and it thus set out to examine the California statute "for substantive authority and content as well as for definiteness or certainty of expression." Id. at 357, 103 S.Ct. at 1858, 75 L.Ed.2d at 909.

In the court's view, the central problem with the California law was that it vested too much discretion in the hands of the police. Id. at 358, 103 S.Ct. at 1858, 75 L.Ed.2d at 909. Under the statute, "[a]n individual, whom [sic ] police may think is suspicious but do not have probable cause to believe has committed a crime, is entitled to continue to walk the public streets 'only at the whim of any police officer' who happens to stop that individual * * *." Id. (quoting Shuttlesworth v. Birmingham [1965], 382 U.S. 87, 90, 86 S.Ct. 211, 213, 15 L.Ed.2d 176, 179). The court concluded that the statute was unconstitutionally vague "because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to" commit a violation. Kolender, supra, 461 U.S. at 361, 103 S.Ct. at 1860, 75 L.Ed.2d at 911.

With the demise of the broad vagrancy statute, local governments increasingly turned to loitering laws to achieve the same purposes. Comment, supra, 71 N.C.L.Rev. at 517. The new loitering laws were narrower than the vagrancy statutes in that they focused on preventing specific sorts of crime--first targeting prostitution and then drug crime. This generation of loitering ordinances, however, sought "to wrap the same unconstitutional law in a prettier package that was more likely to receive judicial sanction." Id. A.C.O. 138.26 is just such an ordinance.

B. Akron Codified Ordinance 138.26

The purpose behind A.C.O. 138.26 was articulated by the ordinance's sponsor, Akron Councilman Michael David Williams. He testified in the municipal court below that, in response to complaints from constituents regarding drug crimes, he intended the ordinance to "assist the Police Department in dealing with the street vendor or individuals who were congregating in large numbers in front of citizen[s'] homes and on corners in neighborhoods in my Ward."

The language of the ordinance, however, goes far beyond the goal stated by Councilman Williams. Subsection (A) broadly provides:

"No person shall loiter in or near any thoroughfare, place open to the public, or near any public or private place in a manner and under circumstances manifesting the purpose to engage in drug-related activity contrary to any of the provisions of R.C. Chapter 2925."

Subsection (B) provides a list of eleven circumstances "which may be considered in determining whether such purpose is manifested * * *." The ordinance does not explain how the eleven "circumstances" are to be considered or what weight they are to carry. ² Most notable, nothing in A.C.O. 138.26 requires that a drug crime actually be committed in order to support an arrest or conviction. A.C.O. 138.26 is clearly a law designed to nip crime "in the bud." Papachristou, supra, 405 U.S. at 171, 92 S.Ct. at 848, 31 L.Ed.2d at 120.

II

A. Construction of the Ordinance

The courts below found A.C.O. 138.26 constitutional by reading into the ordinance a "specific intent" element. The court of appeals wrote that "one of the crucial elements of this ordinance is that of specific intent to engage in drug-related activity." We find that the court of appeals erred in adding a specific intent element to the ordinance.

We are aware of the principle that, if it is reasonably possible, validly enacted legislation must be construed in a manner "which will avoid rather than * * * raise serious questions as to its constitutionality." Co-operative Legislative Commt. of the Transp. Bhds. & Bhd. of Maintenance of Way Emp. v. Pub. Util. Comm. (1964), 177 Ohio St. 101, 29 O.O.2d 266, 202 N.E.2d 699, paragraph two of the syllabus. At the same time, a court's construction of a legislative enactment must bear some reasonable relation to the language of the enactment. "[I]t is not the province of the court, under the guise of construction, to ignore the plain terms of a statute or to insert a provision not incorporated therein by the Legislature." (Emphasis added.) State ex rel. Defiance Spark Plug Corp. v. Brown (1929), 121 Ohio St. 329, 331-332, 168 N.E. 842, 843.

The courts below, in an effort to save A.C.O. 138.26, added an element to the offense that was not incorporated by the Akron City Council. That element, specific intent, cannot be found in the language of the...