State ex rel. Corrigan v. Barnes

• Decision Date: 19 April 1982
• Citation: 443 N.E.2d 1034,3 Ohio App.3d 40,3 OBR 43
• Parties: , 3 O.B.R. 43 The STATE, ex rel. CORRIGAN, Pros. Atty., v. BARNES.
• Court: Ohio Court of Appeals

Page 40

3 Ohio App.3d 40

443 N.E.2d 1034, 3 O.B.R. 43

The STATE, ex rel. CORRIGAN, Pros. Atty., v. BARNES.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 19, 1982.

Syllabus by the Court

1. The primary aim of R.C. 2961.01, which deprives convicted felons of certain civil rights including the right to hold public office, is to impose an additional punishment for the commission of a felony. The statute therefore involves a matter of statewide concern, and is not in conflict with the Home Rule provisions of the Ohio Constitution, even as applied to a person holding municipal office.

2. An amendment to R.C. 2961.01, effective January 1, 1974, which makes the statute applicable to persons convicted of felonies under federal law, may not constitutionally be applied with respect to acts committed prior to January 1, 1974. The amendment, if applied to past acts, would constitute an ex post facto law, prohibited under Section 10, Article I of the United States Constitution, and would constitute a retroactive law, prohibited under Section 28, Article II of the Ohio Constitution.

John T. Corrigan, Pros. Atty., for relator.

Berkman, Gordon, Levy, Murray & Palda, Bernard A. Berkman, J. Michael Murray and Ira S. Goffman, Cleveland, for respondent.

JACKSON, Judge.

This is an original proceeding in quo warranto, ¹ instituted by relator, John T. Corrigan, Prosecuting Attorney of Cuyahoga County, against respondent, John E. Barnes, a member of the City Council of Cleveland, Ohio. Relator contends that respondent is barred from holding public office within the state of Ohio, by reason of a federal felony conviction.

The respondent moved this court for judgment on the pleadings. In ruling upon this motion, the material allegations of the complaint and the reasonable inferences therefrom are assumed to be true; judgment may be rendered for the moving party only if it appears that such party is entitled to judgment as a matter of law. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 165-166, 297 N.E.2d 113 .

It is alleged in the complaint that on January 4, 1954, respondent Barnes was convicted in federal court of refusal to submit to induction into the armed forces of the United States, and that he was sentenced to federal prison. These factual allegations are admitted by the respondent. It is therefore appropriate for this court to dispose of this case by way of judgment on the pleadings, if it appears that respondent is entitled to judgment as a matter of law.

Under Ohio law in effect at the time of respondent's conviction, persons convicted of felonies in the state of Ohio, and persons who had been imprisoned in the penitentiary of any other state for crimes punishable by imprisonment in the penitentiary under the laws of Ohio, were disenfranchised, and were forbidden from holding any office of honor, trust, or profit. G.C. 13458-1 and 13458-2. ²

The language of G.C. 13458-1 and 13458-2 did not make any reference to persons convicted of federal crimes, or to persons incarcerated in federal prisons. There is judicial and administrative authority for the proposition that such persons were not included within the ambit of these statutes. In 1950 the Ohio Attorney General stated:

" * * * There is no provision in Ohio law that would disfranchise a person convicted of a federal crime in a federal court. * * * " 1950 Ohio Atty. Gen. Opinions, No. 1499, at page 198.

The Court of Common Pleas of Putnam County, in 1962, held that a person who had been sentenced to a federal prison was entitled to vote in a local school board election:

"The federal parollee appeared at the voting place, asked the judges if he should vote, who, not being sure of the immediate answer, instructed him to vote and put his ballot in the disputed ballot envelope. This ballot was later ordered counted by the board of elections. Article V, Section 1 of the Ohio Constitution provides that every citizen of the United States of the age of twenty-one, who shall have been a resident of the state one year shall have the qualifications of an elector. Article V, Section 4, provides the General Assembly shall have power to exclude from the privilege of voting certain persons, including those convicted of a felony or infamous crime.

"Section 2961.01, Revised Code [former G.C. 13458-1], provides for disfranchisement of a person convicted of a felony in this State. Section 2961.02, Revised Code [former G.C. 13458-2], provides for disfranchisement of anyone who has been imprisoned in the penitentiary of any other state. There is no Statute relating to disfranchisement of those convicted of federal crimes, nor does the United States have a disfranchising statute. Therefore, under Article V, Section 1, the federal parollee was entitled to vote, the legislature not having enacted a statute disfranchising him." In re Sugar Creek Local School District, Transfer (1962), Ohio Com.Pl., 185 N.E.2d 809, 90 Ohio Law Abst. 257, 262-263.

Effective January 1, 1974, R.C. 2961.02 (former G.C. 13458-2) was repealed (see 134 Ohio Laws, Part II, 1866, 2032-2034), and R.C. 2961.01 (former G.C. 13458-1) was amended (see 134 Ohio Laws, Part II, 1866, 2004), to cover persons convicted of felonies under federal law. The amended version, still in effect, provides in part as follows:

"A person convicted of a felony under the laws of this or any other state or the United States, unless his conviction is reversed or annulled, is incompetent to be an elector or juror, or to hold an office of honor, trust, or profit. * * * " (Emphasis added.)

Respondent contends that, as applied to him, R.C. 2961.01 as amended is unconstitutional, under the Constitutions of Ohio and the United States. Respondent specifically argues that amended R.C. 2961.01, if applied to him, is invalid because it is an ex post facto law, a retroactive law, and a law which is in conflict with the Home Rule provisions of the Ohio Constitution. Each of these issues is separately discussed below.

I. Ex Post Facto Law

Ex post facto laws are prohibited by Section 10, Article I of the United States Constitution, which provides, in part: "No State shall * * * pass any * * * ex post facto Law * * *." The United States Supreme Court has defined an ex post facto law as follows:

" 'It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.' " Dobbert v. Florida (1977), 432 U.S. 282, 292, 97 S.Ct. 2290, 2297-2298, 53 L.Ed.2d 344, quoting Beazell v. Ohio (1925), 269 U.S. 167, 169-170, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (Stone, J.).

The issue presented in this case is whether a law which prohibits a person from holding public office, because of an illegal act committed prior to the enactment of the law, is an ex post facto law. This question was answered in the affirmative in 1867, by the United States Supreme Court, in the cases of Cummings v. Missouri (1867), 4 Wall. 277 (71 U.S.), 18 L.Ed. 356, and Ex Parte Garland (1867), 4 Wall. 333, 18 L.Ed. 366.

Following the close of hostilities in the Civil War, the state of Missouri adopted a new constitution, which forbade any citizen from holding public office, voting, serving as a juror, practicing law, or preaching any religion, until the citizen had taken an oath swearing that he had not taken arms against the United States, or expressed any sympathy with those engaged in the rebellion, or expressed any disaffection toward the government of the United States, or entered or left the state of Missouri for the purpose of evading enrollment in the military service of the United States. John Cummings, a Catholic priest, pursued his vocation and refused to take this oath. He was convicted and fined, and his conviction was affirmed by the Supreme Court of Missouri. The Supreme Court of the United States vacated his conviction, on the ground that the Missouri constitutional provisions prescribing the oath were ex post facto laws.

The state of Missouri, like the state of Ohio in the case at bar, suggested to the court that the oath merely established qualifications for voting and for pursuing various callings, and should not be regarded as "punishment" for acts already committed. Justice Field, writing for a majority of the court, described the long history of deprivation of civil rights as a form of punishment, dating from statutes of William III and George I; he quoted the following selection from Blackstone's Commentaries:

" 'Some punishments,' says Blackstone, 'consist in exile or banishment, by abjuration of the realm or transportation; others in loss of liberty by perpetual or temporary imprisonment. Some extend to confiscation, by forfeiture of lands or movables, or both, or of the profits of lands for life; others induce a disability of holding offices or employments, being heirs, executors, and the like.' " (Footnote omitted.) 4 Wall. at 321, 18 L.Ed. at 362.

The Supreme Court came to the following conclusion:

"The theory upon which our political institutions rests is, that all men have certain inalienable rights--that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection of all these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined." 4 Wall. 321-322, 18 L.Ed. 362.

The Supreme Court found that the effect of the Missouri constitutional provisions was to punish persons who had committed certain legal and illegal acts prior to the adoption...