City of Euclid v. Heaton

• Decision Date: 19 June 1968
• Docket Number: Nos. 41178,41193,41194,41228,s. 41178
• Citation: 15 Ohio St.2d 65,238 N.E.2d 790,44 O.O.2d 50
• Parties: , 44 O.O.2d 50 CITY OF EUCLID, Appellee, v. HEATON, Appellant. The STATE of Ohio, Appellant, v. DODGE, Appellee. (Two cases.) The STATE of Ohio, Appellant, v. BENJAMIN, Appellee.
• Court: Ohio Supreme Court

Page 65

15 Ohio St.2d 65

238 N.E.2d 790, 44 O.O.2d 50

CITY OF EUCLID, Appellee, v. HEATON, Appellant.

The STATE of Ohio, Appellant, v. DODGE, Appellee. (Two cases.)

The STATE of Ohio, Appellant, v. BENJAMIN, Appellee.

Nos. 41178, 41193, 41194, 41228.

Supreme Court of Ohio.

June 19, 1968.

Syllabus by the Court

1. A provision in a joint resolution of the General Assembly of Ohio, submitting to the electors of the state a proposed amendment to the Constitution, that the same shall not go into effect until a time later than that fixed by Section 1 of Article XVI of the Constitution, is inoperative and void, unless the proposition to postpone the taking effect of such proposed amendment beyond the time named in the Constitution is also submitted to the electors of the state and adopted by a majority of those voting on the proposition. (State ex rel. McNamara v. Campbell, 94 Ohio St. 403, 115 N.E. 29, followed.)

2. A majority of the electors voting on the proposed amendment to the Ohio Constitution submitted at the election held May 7, 1968, by Amended Substitute House Joint Resolution No. 42 of the 107th General Assembly, having voted in favor of its adoption and the Secretary of State having certified to that fact, the amendment is effective as of the date of said election by virtue of Section 1, Article XVI of the Constitution, the proposition contained in said resolutions to postpone the effective date of part of said amendment until January 10, 1970, not having been included in the condensed text of the proposed amendment which appeared on the ballot and thus not having been submitted to the electors or adopted by them.

3. By virtue of amended Section 2, Article IV of the Ohio Constitution, effective May 7, 1968, the language of former Section 2 that 'no law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but one of the judges . . .' having been deleted from the Constitution, the Supreme Court, by simple majority, now is authorized to reverse a judgment of a Court of Appeals holding a statute to be constitutional and thereby to declare such statute to be unconstitutional.

4. Sections 2945.67 to 2945.70, inclusive, Revised Code, are unconstitutional insofar as they permit the prosecutor in a criminal case to institute proceedings to review a judgment of the trial court, except where the judgment of such court decides 'a motion to quash, a plea in abatement, a demurrer, or a motion in arrest of judgment,' or the equivalent thereof.

State v. Dodge represents the appeals of the state to this court in two cases wherein Dodge was indicted for the first degree murder of his mother-in-law (No. 41193) and of his wife (No. 41194).

After a jury had been selected, impanelled and sworn to try defendant for the murder of his mother-in-law, he withdrew his pleas of 'not guilty' and 'not guilty by reason of insanity,' and entered a written plea of guilty as charged. At the same time, defendant entered a written plea of guilty to second degree murder in connection with the death of his wife, although he had not yet been brought to trial on that charge. Both pleas were made with the approval of the court and with the consent of the prosecutor and defendant's counsel.

Subsequently, in the mother-in-law case, a three-judge court was convened pursuant to Section 2945.06, Revised Code, and it fixed the degree of the crime as second degree murder. The state's exceptions to this determination were overruled and defendant was sentenced to life imprisonment.

Thereafter, on October 17, 1966, the state filed a motion in the case of the wife, requesting the court not to allow the previously entered plea of guilty to second degree murder. The motion was overruled by the resident judge of the Common Pleas Court who then sentenced defendant to life imprisonment.

In both cases, the state filed notices of appeal as of right to the Court of Appeals and applications for leave to file bills of exceptions pursuant to Sections 2945.67 to 2945.70, ¹ inclusive, Revised Code.

The Court of Appeals held that those sections of the Revised Code are unconstitutional as being an attempt to enlarge the jurisdiction and judicial power of the Court of Appeals beyond that prescribed by Section 6, Article IV of the Ohio Constitution, by attempting to bestow upon that court the power to render an advisory opinion where jeopardy has attached (State v. Dodge, 10 Ohio App.2d 92, 226 N.E.2d 156), and that the state had no appeal as of right in either case.

No. 41228 (State v. Benjamin) came to the Court of Appeals on the prosecuting attorney's attempt to have that court review, pursuant to the same sections of the Revised Code, the trial court's granting of defendant's oral 'motion to dismiss' the indictment for carrying a concealed weapon contrary to Section 2923.01, Revised Code. The basis of that 'motion' was that the indictment was insufficient in that it did not specify the type and length of the weapon. The trial court did not appoint counsel under Section 2945.67, Revised Code. The Court of Appeals overruled the prosecutor's application for permission to file a bill of exceptions on the ground that it had 'no jurisdiction to entertain' the same on the basis of Dodge (10 Ohio App.2d 92, 226 N.E.2d 156). It then certified the case to this court as in conflict with the case of State v. Doyle, 11 Ohio App.2d 97, 228 N.E.2d 863.

In case No. 41178 (City of Euclid v. Heaton), defendant was acquitted, after a trial, of the charge of engaging in common labor on Sunday in violation of Section 3773.24, Revised Code. The bill of exceptions of Euclid's solicitor was signed by the trial court and allowed by the Court of Appeals. The trial court did not appoint an attorney pursuant to Section 2945.69, Revised Code. Heaton claimed an interest in the 'appeal' because in future cases affecting her, the trial court, on similar facts, would be bound to follow the decision of the Court of Appeals.

Although that court refused to permit Heaton to intervene as an appellee by counsel of her own selection, it did consider her counsel's motion to dismiss the 'appeal,' claiming that Sections 2945.67 to 2945.70, inclusive, Revised Code, were unconstitutional, and overruled the same. Thereafter, counsel was permitted to participate in the 'appeal' as an amicus curiae. The Court of Appeals rendered an opinion finding error in the trial court's dismissal of the affidavit and discharge of the defendant. Its judgment was limited to the assessment of costs against Euclid and did not attempt otherwise to affect the judgment of the trial court.

William T. Monroe, director of law, and Robert Steele, Cleveland, for appellee in case No. 41178.

Metzenbaum, Gaines, Krupansky, Finley & Stern and Donald M. Robiner, Cleveland, for appellant in case No. 41178.

Richard J. Rinebolt, Prosecuting Atty., for appellant in case Nos. 41193 and 41194.

Paul H. Cunningham, Findlay, and Donald L. Robertson, Cincinnati, for appellee in case Nos. 41193 and 41194.

Robert L. Balyeat, Prosecuting Atty., for appellant in case No. 41228.

(No appearance for appellee in case No. 41228.)

SCHNEIDER, Judge.

In each of the two Dodge cases, it will be observed immediately that the Prosecuting Attorney initially raised no objection to the form of substance of the plea. Neither in the Court of Appeals nor in this court did he advance any argument directed to the merits of his dissatisfaction with the disposition of cause No. 41193 (indictment for murder in the first degree of defendant's mother-in-law) by the three-judge court, confining his argument solely to the constitutionality of the so-called prosecutor's appeal.

In cause No. 41194, he appealed only from the order of the trial court refusing to grant his motion 'not to allow' the plea (of guilty to murder in the second degree to the indictment charging murder in the first degree) to which he had previously consented. No error was claimed, or 'appeal' taken, from the disposition of the cause upon the plea by the single-judge court. It is self-evident that the Court of Appeals should have dismissed the proceedings forthwith, since the error, if any, had been consented to by the prosecutor. Instead of adhering to the rule binding it to refrain from deciding a constitutional question unless the necessity therefor arises (Greenhills Home Owners Corp. v. Village of Greenhills, 5 Ohio St.2d 207, 215 N.E.2d 403, 10 Ohio Jurisprudence 2d 195-201, inclusive) that court issued its opinion on the constitutional question, the substance of which was already been reported in the statement of facts, supra. In so doing, it indulged in the precise conduct which it held the General Assembly was powerless to impose upon it, that is, the decision of what, in fact, was a question academic to the actual case before it.

By our unanimous affirmance of the judgments in Dodge, however, we accomplish the same result as that reached by those judgments, but for the reasons already explained.

Two and one-half months later the same Court of Appeals, sitting in Allen County, decided Benjamin (No. 41228). The question there arose from the order of the trial court sustaining a 'motion' which was equivalent to a demurrer to the indictment. That motion raised the issue of the sufficiency of the indictment. The defendant was not then, had never been, nor has yet to be in jeopardy on that indictment. Nevertheless, the Court of Appeals dismissed the appeal on constitutional grounds on the authority of Dodge, notwithstanding its syllabus in that case was limited to appeals in which jeopardy had attached, and notwithstanding the language of Section 2945.70, Revised Code, which excepts a 'judgment of the trial court on its ruling on a motion to quash, a plea in abatement, a demurrer, or a motion in arrest of judgment,' from the mandate that (in proceedings pursuant to Sections 2945.67 to 2945.70, inclusive, Revised Code) a...