City of Akron v. Molyneaux

• Decision Date: 11 July 2001
• Citation: 760 N.E. 2d 461,144 Ohio App. 3d 421
• Court: Ohio Court of Appeals

144 Ohio App. 3d 421

760 N.E.2d 461

CITY OF AKRON, Appellee v KENNETH A. MOLYNEAUX, Appellant

C.A. No. 20309

COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT, SUMMIT COUNTY

July 11, 2001, Decided

J. DEAN CARRO, Attorney at Law, Appellate Review Office, School of Law, The University of Akron, Akron, Ohio, for Appellant.

JOSEPH A. KODISH, Attorney at Law, Akron, Ohio, for Appellant.

DOUGLAS J. POWLEY, City Prosecutor, and GERALD A. LARSON, Assistant City Prosecutor, Akron, Ohio, for Appellee.

WILLIAM G. BATCHELDER, BATCHELDER, P.J., CARR, J. CONCURS. SLABY, J., CONCURS IN PART AND DISSENTS IN PART.

DECISION AND JOURNAL ENTRY

Dated: July 11, 2001

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

Per Curiam.

Defendant, Kenneth A. Molyneaux, has appealed from his convictions in the Akron Municipal Court. We affirm in part and reverse in part.

Akron City Police arrested Defendant and a companion for placing handbills under the windshield wipers of vehicles parked in a mall parking lot. The handbills described Defendant's political views. The distribution of the handbills was in violation of the mall's policy, as well as Akron Codified Ordinance 95.26, a littering ordinance which addresses the placement of handbills on vehicles. Defendant was charged with criminal trespass, a violation of Akron Codified Ordinance 131.08(B ) (1 ),and placing [handbills] on vehicles, a violation of Akron Codified Ordinance 95.26. Prior to the trial, Defendant moved to dismiss the littering charge. The court denied the motion. The jury found Defendant guilty of all charges and the trial court sentenced him accordingly. Defendant timely appealed raising three assignments of error for review.

ASSIGNMENT OF ERROR I

The trial court erred in denying [Defendant's] Motion to Dismiss, made on First Amendment grounds. The littering ordinance under which [Defendant] was charged violates the free speech protections of the United States and Ohio constitutions, because it is facially overbroad and because it does not survive intermediate scrutiny. ***

In Defendant's first assignment of error, he argues that the trial court erred in denying his motion to dismiss the littering charge because Akron Codified Ordinance 95.26 is facially overbroad and it does not pass intermediate scrutiny. We agree to the extent addressed.

Before addressing the merits of Defendant's claims, we note that there are hand-written notes on the file jacket which indicate that the trial court denied Defendant's motion to dismiss, as well as his Crim.R. 29 motion for acquittal, addressed in Assignment of Error II. However, there is no indication that the denials were ever journalized. The Supreme Court of Ohio in State ex rel. White v. Junkin (1997), 80 Ohio St. 3d 335, 337, 686 N.E.2d 267, noted that handwritten notations by a municipal judge upon a case jacket do not constitute judgment from which an appeal may arise unless there is some evidence presented in tandem with the case jacket indicating that such notations have in fact been journalized. There is no such indication in this case. However, when a trial court fails to rule on a motion, the motion will be considered denied. Georgeoff v. O'Brien (1995), 105 Ohio App. 3d 373, 378, 663 N.E.2d 1348. This presumption has been applied to outstanding motions in criminal cases at the time a judgment of conviction is entered. State v. Mollick, 2000 Ohio App. LEXIS 3803 (Aug. 23, 2000) Lorain App. No. 99CA007381, unreported, at 3-4. Therefore, we presume the trial court denied Defendant's motion to dismiss, as well as his Crim.R. 29 motion for acquittal.

With respect to Defendant's assignment of error, we review the trial court's denial of a motion to dismiss de novo. State v. Benton(2000), 136 Ohio App. 3d 801, 805, 737 N.E.2d 1046. In determining the constitutionality of an ordinance, we are mindful of the fundamental principle requiring courts to presume the constitutionality of lawfully enacted legislation. Univ. Hts. v. O'Leary (1981), 68 Ohio St. 2d 130, 135, 429 N.E.2d 148. Further, the legislation being challenged will not be invalidated unless the challenger establishes that it is unconstitutional beyond a reasonable doubt. Id.

The right to distribute, circulate or otherwise disseminate ideas and written materials has long been recognized to constitute an integral part of the right of free speech. This right is clearly fundamental and protected by the First Amendment. Martin v. Struthers (1943), 319 U.S. 141, 143, 87 L. Ed. 1313, 1316-1317, 63 S. Ct. 862. The degree of First Amendment protection varies with the forum in which expression occurs. Internatl. Soc. for Krishna Consciousness, Inc. v. Lee (1992), 505 U.S. 672, 677, 120 L. Ed. 2d 541, 549-550, 112 S. Ct. 2701. For example, the right to free speech is at its most attenuated when the forum is private property, since the right of the property owner and his invitees are at stake. Cincinnati v. Thompson (1994), 96 Ohio App. 3d 7, 16, 643 N.E.2d 1157.

In this case, Defendant first asserts that the ordinance in question is facially overbroad because it restricts more speech than necessary to accomplish the City's purpose of litter prevention. There are two ways for a statute to be facially invalid: (1) it is unconstitutional in every conceivable application, or (2) it is overbroad, i.e., it prohibits a substantial amount of constitutionally protected conduct. Members of the City Council of Los Angeles v. Taxpayers for Vincent (1984), 466 U.S. 789, 796, 80 L. Ed. 2d 772, 781, 104 S. Ct. 2118.

An overbreadth challenge is predicated on the proposition that "[a] clear and precise enactment may nevertheless be 'overbroad' if in its reach it prohibits constitutionally protected conduct." Grayned v. Rockford (1972), 408 U.S. 104, 114-115, 33 L. Ed. 2d 222, 231, 92 S. Ct. 2294. We note that legislation will not be invalidated as overbroad simply because constitutionally impermissible applications of the legislation are conceivable. Rather, "there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court [.] " Taxpayers for Vincent (1984), 466 U.S. at 801, 80 L. Ed. 2d at 784-785.

The Ohio Supreme Court addressed the question of overbreadth in State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals(1992), 63 Ohio St. 3d 354, 588 N.E.2d 116, as follows:

the overbreadth doctrine represents an exception to the usual rules applicable to standing. It permits a party to challenge a statute on its face when others not presently before the court may be affected by the statute's application. The overbreadth doctrine applies only to First Amendment cases where the challenged law would have a "chilling effect" on constitutionally protected freedoms of speech. If the statute represents a substantial prior restraint on free speech, then it may not be enforced against anyone unless it is narrowly tailored to prohibit only unprotected activity.

(Citations omitted. ) Id. at 357.

A court has a "duty to adopt that construction which will save [a] statute from constitutional infirmity." United States ex rel. Atty. Gen. v. Delaware & Hudson Co. (1909), 213 U.S. 366, 407, 53 L. Ed. 836, 849, 29 S. Ct. 527. Therefore, when enforcement of a statute proscribing criminal conduct is sought against constitutionally protected conduct, the common practice is not to invalidate the law in its entirety, but to reverse the defendant's conviction. New York v. Ferber (1982), 458 U.S. 747, 773, 73 L. Ed. 2d 1113, 1133, 102 S. Ct. 3348; Broadrick v. Oklahoma (1973), 413 U.S. 601, 614-615, 37 L. Ed. 2d 830, 841-842, 93 S. Ct. 2908.

Akron Codified Ordinance 95.26 provides:

Placing on Vehicles

No person shall throw or deposit any handbill in or on any vehicle. However, it shall not be unlawful in any public place for a person to hand out or distribute without charge to the receiver thereof, a handbill to any occupant of a vehicle who is willing to accept it, subject to the limitations prescribed in § 77.09.

The ordinance prohibits placing a handbill in or on a vehicle, regardless of whether the vehicle is located on public or private property. However, it allows distribution of the handbill on public property to an occupant of a vehicle who is a willing receiver. The ordinance provides no exception that allows a private property owner to distribute handbills to a willing vehicle occupant on his own property. For example, the ordinance would permit the owner of the mall to step from the curb of his parking lot into the street to deliver a handbill to the occupant of a vehicle, but it would prohibit him from distributing the same handbill to the same vehicle occupant in his parking lot.

With regard to property rights, "[a] special respect for individual liberty in the home has long been part of our culture and our law [and] that principle has special resonance when the government seeks to constrain a person's ability to speak there." (Emphasis and citations omitted.) Ladue v. Gilleo (1994), 512 U.S. 43, 58, 129 L. Ed. 2d 36, 49, 114 S. Ct. 2038. Further, property rights are not created by the Constitution, but by independent sources, such as state law. Delaware v. New York (1993), 507 U.S. 490, 501-502, 123 L. Ed. 2d 211, 222, 113 S. Ct. 1550. An individual's private property interests are diverse, extend beyond actual fee ownership of real estate, and include the property owner's absolute right of dominion, use or disposition over it. Lucas v. Carney (1958), 167 Ohio St. 416, 423, 149 N.E.2d 238.

The rights of private property owners are not absolute. For example, they are subject to restrictions such as zoning laws. Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114. However, any exercise of the state's police power to restrict the right to use one's property must be "reasonable,...