City of Columbus v. Rogers

• Decision Date: 05 March 1975
• Docket Number: No. 74-223,74-223
• Citation: 324 N.E.2d 563,41 Ohio St.2d 161,70 O.O.2d 308
• Parties: , 70 O.O.2d 308 CITY OF COLUMBUS, Appellee, v. ROGERS, Appellant.
• Court: Ohio Supreme Court

Page 161

41 Ohio St.2d 161

324 N.E.2d 563, 70 O.O.2d 308

CITY OF COLUMBUS, Appellee, v. ROGERS, Appellant.

No. 74-223.

Supreme Court of Ohio.

March 5, 1975.

Syllabus by the Court

A provision of a city ordinance making it unlawful for any person to appear in public 'in a dress not belonging to his or her sex,' considered in the light of contemporary dress habits, violates the due process clause of the Fourteenth Amendment to the United States Constitution in that it is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.

Defendant-appellant, John H. Rogers, herein referred to as appellant, was charged in the Franklin County Municipal Court with appearing in public in the dress and attire of the opposite sex in violation of Section 2343.04 of the Columbus City Codes.

At the trial, appellant, claiming the ordinance to be unconstitutional on grounds that it deprived him of the right of privacy guaranteed by the Fourth Amendment, the right of expression guaranteed by the First Amendment, and the due process guaranteed by the Fifth and Fourteenth Amendments, moved, at the close of the evidence, for dismissal of the charge.

The trial court overruled the motion for dismissal and found appellant guilty. Appellant appealed the judgment of conviction to the Court of Appeals, assigning as error in that court the trial court's refusal to grant his motion to dismiss.

The Court of Appeals affirmed the judgment, and the cause is now before this court pursuant to the allowance of a motion to certify the record.

James J. Hughes, Jr., City Atty., Daniel W. Johnson and Charles L. Price, Columbus, for appellee.

Roy F. Martin and Max Kravitz, Columbus, for appellant.

C. WILLIAM O'NEILL, Chief Justice.

Section 2343.04 of the Columbus City Codes reads:

'No person shall appear upon any public street or other public place in a state of nudity or in a dress not belonging to his or her sex, or in an indecent or lewd dress.'

Appellant states as a proposition of law that Section 2343.04 '* * * is unconstitutionally vague on its face on the grounds it fails to give fair notice of the conduct forbidden by the ordinance and fails to provide guidelines to law enforcement officials charged with its enforcement.'

Appellee maintains that this court should not consider appellant's void-for-vagueness argument for the reason that such argument was not presented to the Court of Appeals or to the trial court. In support of this contention, appellee cites Kimball v. Kimball Bros., Inc. (1944), 143 Ohio St. 500, 56 N.E.2d 60, and R.C. 2505.21.

In Kimball, the question was whether on appeal the parties could, by stipulation, raise 'a question not presented to the trial court.' It was held, in paragraph one of the syllabus, that:

'An appellate court, on appeal on questions of law, reviews the judgment of the court below upon the record as therein made and is without legal authority to consider a stipulation of facts presenting questions not presented to or passed upon by the trial court.'

The record in this cause shows that appellant raised the question of the constitutionality of the ordinance by motion to dismiss in the trial court. In the Court of Appeals, appellant assigned as error the trial court's refusal to grant that motion. Thus, appellant raised the question of the constitutionality of the ordinance in both the trial court and the Court of Appeals. However, the record does not show that appellant argued in either of the courts below, as he does here, that the ordinance is unconstitutionally void for vagueness.

In Kimball, an attempt was made to present a question of fact to the Court of Appeals which was not before the trial court, while here the basic question at issue-the constitutionality of the ordinance-was presented to the trial court and the Court of Appeals. The Kimball case is, therefore, distinguishable, and is not controlling.

R.C. 2505.21 reads, in part:

'Appeals taken on questions of law shall be heard upon assignments of error filed in the cause or set out in the briefs of the appellant before hearing. Errors not specifically pointed out in the record and separately argued by brief may be disregarded, but the court may consider and decide errors which are not assigned or specified. * * *'

R.C. 2505.21 was construed in State v. Juliano (1970), 24 Ohio St.2d 117, 265 N.E.2d 290, wherein, at page 120, 265 N.E.2d at page 293, the court said:

'Although, under R.C. 2505.21, this court may disregard errors not specifically pointed out in the record and separately argued, it may, in appropriate instances, consider errors of record which were not argued. * * *'

Inasmuch as appellant raised the question of constitutionality of the ordinance in the trial court, and preserved that issue both in the Court of Appeals and in this court, we deem it appropriate to consider appellant's contention that the ordinance is unconstitutionally void for vagueness.

It is appellant's position that the ordinance 'fails to give fair notice of the conduct forbidden * * * and fails to provide guidelines to law enforcement officials charged with its enforcement.'

In holding a Cincinnati ordinance prohibiting prowling unconstitutional in Cincinnati v. Taylor (1973), 36 Ohio St.2d 73, 303 N.E.2d 886, it was said in the course of the opinion, at page 75, 303 N.E.2d at page 888:

'Section 901-P10 is unconstitutionally void for vagueness, because it does not provide adequate standards by which activity can be determined as legal or illegal.

'The standard is inadequate '* * * to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The...