State v. Bolar

• Citation: 39 Ohio App.3d 194,530 N.E.2d 940
• Decision Date: 16 July 1987
• Docket Number: No. 53017,53017
• Parties: The STATE of Ohio, Appellant, v. BOLAR, Appellee.
• Court: United States Court of Appeals (Ohio)

Page 194

39 Ohio App.3d 194

530 N.E.2d 940

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

No. 53017.

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

July 16, 1987.

Syllabus by the Court

1. Section 2011, Title 7, U.S.Code does not preempt concurrent enforcement of supplementary state statutes outlawing the misuse of federal food stamps.

2. R.C. 2913.46(A), which prohibits the use of federal food stamps in a manner inconsistent with Section 2011, Title 7, U.S. Code, is not an unconstitutional delegation of legislative power.

John T. Corrigan, Pros. Atty., and Roger S. Kramer, Cleveland, for appellant.

Alan Rossman, Cleveland, for appellee.

MARKUS, Chief Judge.

The state appeals from the dismissal of the second count of the grand jury's indictment, which charged the defendant with violating R.C. 2913.46(A). The writer of this opinion agrees with the trial court that the cited statute is unconstitutional, albeit for a different reason. The majority of the court concludes that the statute is constitutional and enforceable. Hence, we reverse the dismissal judgment.

R.C. 2913.46(A) provides:

"No individual shall knowingly possess, buy, sell, use, alter, accept, or transfer food stamp coupons in any manner not authorized by the 'Food Stamp Act of 1977,' 91 Stat. 958, 7 U.S.C. 2011, as amended."

The trial court apparently concluded that the federal Act preempted any state legislation, so the federal Supremacy Clause precluded this Ohio statute. All members of this panel disagree with that conclusion. The federal code does create a federal crime for misuse of federal food stamps. Section 2024(b), Title 7, U.S.Code. However, nothing in the federal statute seeks to preclude supplementary enforcement efforts by state authorities pursuant to state criminal laws. Further, potentially differing state enforcement efforts do not impair any congressional purpose in the federal food stamp program.

Indeed, federal administrative regulations expressly encourage cooperating state agencies to refer food stamp abuse cases for criminal prosecution under appropriate state statutes. Sections 273.16(a)(2) and (g)(1), Title 7, C.F.R. Absent a clear congressional mandate, the courts should not construe federal statutes to preclude related state action. See, e.g., CTS Corp. v. Dynamics Corp. of America (1987), 481 U.S. 69, 78-79, 107 S.Ct. 1637, 1644, 95 L.Ed.2d 67, 78.

Thus, in appropriate cases Ohio can properly prosecute food stamp violators for various state offenses: e.g., theft (R.C. 2913.02), criminal simulation (R.C. 2913.32), tampering with records (R.C. 2913.42), receiving stolen property (R.C. 2913.51), bribery (R.C. 2921.02), or theft in office (R.C. 2921.41). State law defines each of these offenses, without reference to any federal statute or regulation.

The majority of this panel believes that R.C. 2913.46(A) is equally enforceable, even though it refers to a federal statute. The writer believes that R.C. 2913.46(A) violates the Ohio Constitution as an unlawful delegation of legislative authority.

Only the Ohio General Assembly can exercise this state's legislative authority. Section 1, Article II, Ohio Constitution. It can define crimes by determining the elements for those offenses. State v. Healy (1951), 156 Ohio St. 229, 239-240, 46 O.O. 110, 114, 102 N.E.2d 233, 239; State v. Woods (1982), 8 Ohio App.3d 56, 8 OBR 87, 455 N.E.2d 1289. It cannot delegate this important legislative power to another governmental entity. State, ex rel. Foster, v. Evatt (1944), 144 Ohio St. 65, 29 O.O. 4, 56 N.E.2d 265.

The legislature can properly authorize another governmental agency to promulgate rules or regulations which further define an offense and thereby implement the statutory purpose. See State v. Switzer (1970), 22 Ohio St.2d 47, 51 O.O.2d 69, 257 N.E.2d 908 (R.C. 1533.63 validly allows wildlife director to regulate the minimum length of legally possessed fish, even though possession of shorter fish is a crime).

See, also, State v. Messenger (1900), 63 Ohio St. 398, 59 N.E. 105 (R.S. 4904 validly allowed county commissioners to determine vehicle weight limits, even though driving a vehicle which exceeded those limits was a crime); State v. Reed (1983), 14 Ohio App.3d 63, 14 OBR 75, 470 N.E.2d 150 (R.C. 3719.44 validly allows the state pharmacy board to modify schedules for controlled substances, even though possession of substances in different schedules constitutes different crimes).

However, those rules and regulations must conform to an intelligible principle which the General Assembly established through a legislatively stated policy and fixed standards. Blue Cross v. Ratchford (1980), 64 Ohio St.2d 256, 18 O.O.3d 450, 416 N.E.2d 614, syllabus. Additionally, there must be a procedure for judicial review to assure that the delegated action conforms to that principle. Id.; Cleveland v. Piskura (1945), 145 Ohio St. 144, 30 O.O. 340, 60 N.E.2d 919, paragraph five of the syllabus.

This writer concludes that R.C. 2913.46(A) does not authorize another governmental entity to promulgate rules or regulations which implement an established legislative principle. Rather, it authorizes the United States Congress to define an Ohio offense. The Ohio statute expressly provides that conduct constitutes an Ohio crime if the federal statute disallows it, but is lawful if the federal Act allows it. Moreover, it provides that Congressional amendments to the federal Act redefine Ohio criminal conduct.

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