Bragg v. Taft, 2007 Ohio 846 (Ohio App. 3/1/2007)
| Decision Date | 01 March 2007 |
| Docket Number | No. 06AP-741.,06AP-741. |
| Citation | 2007 Ohio 846 |
| Parties | John T. Bragg, Plaintiff-Appellant, v. Bob Taft et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 05CVH-6797.
John T. Bragg, pro se.
Marc Dann, Attorney General, Frank M. Strigari and Mark J. Zemba, for appellees.
{¶1} Plaintiff-appellant, John T. Bragg ("Bragg"), a convicted murderer1 currently serving a life sentence at the Grafton Correctional Institute in Grafton, Ohio, appeals from a judgment of the Franklin County Court of Common Pleas, that granted the motion to dismiss filed by defendants-appellees, the Honorable Robert Taft, former Governor of the State of Ohio, and Reginald Wilkinson, Director of the Ohio Department of Rehabilitation and Correction (collectively referred to as "the State"). For the following reasons, we affirm.
{¶2} The following facts are pertinent to this appeal. In 1994 and 2003, Bragg, a Canadian citizen, requested a transfer to a Canadian prison to serve the remainder of his sentence, claiming entitlement under the treaty entered into between the United States of America and Canada on the Execution of Penal Sentences, 30 U.S.T. 6263-6272, T.I.A.S. 9552 (1978) ("the Treaty"). The State denied both requests on the basis that R.C. 5120.53 prohibited Bragg's transfer.
{¶3} On June 23, 2005, Bragg filed a complaint against the State, seeking declaratory and injunctive relief. Therein, Bragg challenged the constitutionality of R.C. 5120.53, asserting that the statute is impermissibly overbroad and violates the Supremacy Clause in Article VI of the United States Constitution because it conflicts with the express terms of the Treaty. Bragg further alleged that the State acted unlawfully by considering the fiscal ramifications associated with transferring an offender. The relief sought by Bragg included a declaratory judgment that: (1) the State violated the terms of the Treaty; (2) R.C. 5120.53 is unconstitutional; and (3) the State's consideration of fiscal issues frustrates the facilitation of offender transfers. He also sought injunctive relief prohibiting the State from "utilizing R.C. 5120.53 to frustrate the purpose of the Treaty." (Complaint at 9.)
{¶4} The State moved to dismiss Bragg's complaint pursuant to Civ.R. 12(B)(6), and the trial court granted that motion. It is from that judgment Bragg appeals, raising the following assignment of error:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DISMISSED PLAINTIFF'S COMPLAINT UNDER CIV.R. 12(B)(6) WHEN THE COMPLAINT STATED ALL THE REQUISITE ELEMENTS OF THE PLAINTIFF'S CLAIMS WITH SUFFICIENT PARTICULARITY.
{¶5} By his assignment of error, Bragg challenges the trial court's dismissal of his complaint, asserting that he sufficiently stated a cause of action against the State on the grounds that R.C. 5120.53(A) conflicts with the express terms of the Treaty.
{¶6} This court conducts a de novo review of a trial court's dismissal of a complaint pursuant to Civ.R. 9(B) and 12(B). Singleton v. Adjutant General of Ohio, Franklin App. No. 02AP-971, 2003-Ohio-1838, at ¶16, citing State ex rel. Drake v. Athens Cty. Bd. of Elections (1988), 39 Ohio St.3d 40; Tripp v. Beverly Ent.-Ohio, Inc., Summit App. No. 21506, 2003-Ohio-6821, ¶59. A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 548; Powell v. Vorys, Sater, Seymour & Pease (1998), 131 Ohio App.3d 681, 684. Dismissal of a complaint pursuant to Civ.R. 12(B)(6) is appropriate only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to recover. Springfield Fireworks, Inc. v. Ohio Dept. of Commerce, Franklin App. No. 03AP-330, 2003-Ohio-6940, at ¶12, citing O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, syllabus.
{¶7} Further, to be entitled to declaratory relief, a plaintiff must demonstrate that (1) a real controversy exists between the parties; (2) the controversy is justiciable in character; and (3) the situation requires speedy relief to preserve the rights of the parties. Landskroner v. Landskroner, 154 Ohio App.3d 471, 2003-Ohio-5077, at ¶8, citing Herrick v. Kosydar (1975), 44 Ohio St.2d 128. A court may dismiss a declaratory judgment action pursuant to Civ.R. 12(B)(6) only when: (1) no real controversy or justiciable issue exists between the parties; or (2) the declaratory judgment will not terminate the uncertainty or controversy. McConnell, supra, at 681, citing AEI Group, Inc. v. Ohio Dept. of Commerce (1990), 67 Ohio App.3d 546, 550, citing Fioresi v. State Farm Mut. Auto. Ins. Co. (1985), 26 Ohio App.3d 203, 203-204.
{¶8} We begin our analysis by first examining R.C. 5120.53, which provides in pertinent part:
(A) If a treaty between the United States and a foreign country provides for the transfer or exchange, from one of the signatory countries to the other signatory country, of convicted offenders who are citizens or nationals of the other signatory country, the governor, subject to and in accordance with the terms of the treaty, may authorize the director of rehabilitation and correction to allow the transfer or exchange of convicted offenders and to take any action necessary to initiate participation in the treaty. If the governor grants the director the authority described in this division, the director may take the necessary action to initiate participation in the treaty and, subject to and in accordance with division (B) of this section and the terms of the treaty, may allow the transfer or exchange to a foreign country that has signed the treaty of any convicted offender who is a citizen or national of that signatory country.
(B)(1) No convicted offender who is serving a term of imprisonment in this state for aggravated murder, murder, or a felony of the first or second degree, who is serving a mandatory prison term imposed under section 2925.03 or 2925.11 of the Revised Code in circumstances in which the court was required to impose as the mandatory prison term the maximum prison term authorized for the degree of offense committed, who is serving a term of imprisonment in this state imposed for an offense committed prior to the effective date of this amendment that was an aggravated felony of the first or second degree or that was aggravated trafficking in violation of division (A)(9) or (10) of section 2925.03 of the Revised Code, or who has been sentenced to death in this state shall be transferred or exchanged to another country pursuant to a treaty of the type described in division (A) of this section.
Succinctly stated, R.C. 5120.53 precludes offenders convicted of aggravated murder from being transferred to a prison in their native country pursuant to a treaty entered into between the United States and a foreign country.
{¶9} Bragg argues, inter alia, that R.C. 5120.53 runs afoul of the Supremacy Clause of Article VI of the United States Constitution because it conflicts with section 7, Article III, of the Treaty ("section 7"), which reads:
No offender shall be transferred unless:
(a) he is under a sentence of imprisonment for life; or
(b) the sentence which he is serving states a definite termination date, or the authorities authorized to fix such a date have so acted; or
(c) he is subject to confinement, custody or supervision under the laws of the Sending State respecting juvenile offenders; or
(d) he is subject to indefinite confinement as a dangerous or habitual offender.
{¶10} Bragg is correct to the extent that a Treaty entered into by the United States has the same force and effect as a federal statute, and is secured by the Supremacy Clause of Article VI. Whitney v. Robertson (1888), 124 U.S. 190, 194, 8 S.Ct. 456 (). After this, however, his argument breaks down. Bragg claims that when an offender (such as he) qualifies for a transfer under section 7, it provides a legal right of transfer, and because R.C. 5120.53 prohibits offenders convicted of aggravated murder from being transferred, R.C. 5120.53 violates the Supremacy Clause, and, therefore, is unconstitutional.
{¶11} We find Bragg's argument to be without merit since it rests upon a fundamental misconstruction of the plain meaning of section 7. That section merely identifies the types of offenders that are eligible for transfer; it does not mandate that an offender be transferred. Moreover, in making this argument, Bragg has selectively omitted...
To continue reading
Request your trial