State v. Burnett, 00-266.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtMOYER, C.J.
Citation93 Ohio St.3d 419,755 NE 2d 857
Docket NumberNo. 00-266.,00-266.
Decision Date17 October 2001

93 Ohio St.3d 419
755 NE 2d 857


No. 00-266.

Supreme Court of Ohio.

Submitted March 13, 2001.

Decided October 17, 2001.

Fay D. DuPuis, City Solicitor, Terrence R. Cosgrove, Cincinnati City Prosecutor, and Jennifer Bishop, Assistant Prosecutor, for appellee.

Bruce F. Thompson, Hamilton County Public Defender's Office, for appellant.

Raymond Vasvari and Bernard F. Wong, urging reversal for amicus curiae, the American Civil Liberties Union of Ohio Foundation.


On August 7, 1996, appellee, the city of Cincinnati, passed Ordinance No. 229-1996. The ordinance enacted Chapter 755 of the Cincinnati Municipal Code, which established drug-exclusion zones within the city. In passing the ordinance, the city council stated that certain areas of the city have a higher incidence of drug-related activity, which leads to the degradation of those areas. Ordinance No. 229-1996, Section 1(A). Further, the city council theorized that many people arrested for or convicted of drug offenses frequently returned to these areas. Section 1(B). Finding that its existing laws did not adequately control drug-related activity and that the public interest in "preventing the

93 Ohio St.3d 420
harmful effects of illegal drug abusers" was great, Sections 1(E) and (F), the city created a drug-exclusion zone under Chapter 755.1

The ordinance states that "drug-exclusion zones are those areas of the city as designated by the city council under Chapter 755 of this code, which are areas where the number of arrests for the crimes listed in Chapter 755-5 and other drug-abuse related crimes * * * is significantly higher than that for other similarly situated/sized areas of the city." Cincinnati Municipal Code 755-1. Chapter 755 subjects a person to exclusion for ninety days from the public streets, sidewalks, and other public ways in all drug-exclusion zones if the person is arrested or taken into custody within any drug-exclusion zone for any of several enumerated offenses.2 Cincinnati Municipal Code 755-5. If the offender is subsequently convicted of the crime for which he or she was arrested, the offender is prohibited for one year from the date of conviction from being on any public street, sidewalk, or other public way in all drug-exclusion zones. Id. If an excluded person is found within a drug-exclusion zone during the exclusion period, that person is subject to immediate arrest for criminal trespass pursuant to R.C. 2911.21. Id.

At the time a person is arrested within a drug-exclusion zone for any of the crimes listed in Section 755-5, the officer making the arrest may, but is not required to, deliver a written notice excluding the person from all drug-exclusion zones. Cincinnati Municipal Code 755-9. If notice is given, it shall specify the areas designated as drug-exclusion zones and it shall provide information concerning the right to appeal the exclusion notice as provided in Section 755-11. Id.

If a person is served with an exclusion notice, an appeal of the exclusion may be filed with the director of safety within five calendar days of the issuance of the notice. Cincinnati Municipal Code 755-11. A hearing on the appeal must then be conducted by the director of safety within thirty days. Cincinnati Municipal Code 755-11(1)(a), 755-13(B)(a). During the pendency of the appeal, the exclusion does not take effect. Cincinnati Municipal Code 755-11(1)(b). The city has the burden to show by a preponderance of the evidence that the exclusion is based on conduct outlined in Section 755-5. Cincinnati Municipal Code 755-11(1)(b).

93 Ohio St.3d 421
A conviction for any of the crimes listed in Section 755-5 or a determination that the arresting officer had probable cause to arrest a person for such crimes is prima facie evidence that the exclusion was based on prohibited conduct. Cincinnati Municipal Code 755-11(2)(a)

A variance from an exclusion may also be granted at any time during the exclusion by the chief of police or by a social service agency that provides services within the drug-exclusion zone only for reasons relating to the health, welfare, or well-being of the person excluded, or for drug-counseling services. Cincinnati Municipal Code 755-11(2)(b). The chief of police must grant a variance to any person who can establish that he or she is a bona fide resident of the drug-exclusion zone or a bona fide owner, principal, or employee of a place of lawful employment located in the drug-exclusion zone. Id. All variances must be in writing, and the person must keep the variance with him or her at all times within a drug-exclusion zone. Cincinnati Municipal Code 755-11(2)(c). If the person is found to be outside the scope of the variance or is arrested for conduct prohibited by state or federal drug laws, the variance immediately becomes void. Cincinnati Municipal Code 755-11(2)(c) and (d).

On February 7, 1998, appellant, George Burnett, was arrested for one of the designated drug offenses and was given a ninety-day exclusion notice from the Over the Rhine drug-exclusion zone by the arresting police officer. Immediately upon conviction of the charge, Burnett was served by the city with a notice of a one-year exclusion from the Over the Rhine drug-exclusion zone. On June 23, 1998, Burnett was found to be present in the drug-exclusion zone and was arrested for criminal trespass in violation of R.C. 2911.21.

The trial court overruled Burnett's motion to dismiss, in which he argued that Chapter 755 of the Cincinnati Municipal Code is unconstitutional. Burnett was convicted as charged. Upon Burnett's appeal to the First District Court of Appeals, the judgment of the trial court was affirmed. The case is now before this court pursuant to the allowance of a discretionary appeal.

The issue is whether Chapter 755 of the Cincinnati Municipal Code is constitutional. Burnett argues that the one-year exclusion3 violates the freedom of assembly and association guaranteed by the First Amendment to the United States Constitution and the right to travel guaranteed by the Fourteenth Amendment to the United States Constitution.

As an initial matter, we consider a question of federalism. After the court of appeals issued its opinion in this case, the United States District Court for the Southern District of Ohio ruled in a separate case, Johnson v. Cincinnati

93 Ohio St.3d 422
(S.D.Ohio 2000), 119 F.Supp.2d 735, that Chapter 755 of the Cincinnati Municipal Code is unconstitutional because it violates rights to freedom of association and freedom of movement.4 The Johnson decision has not been appealed to the United States Court of Appeals for the Sixth Circuit, and counsel for appellant indicated during oral argument that the city has suspended enforcement of Chapter 755 since the Johnson decision was issued. The federalism question is whether a state supreme court is bound by an application of federal constitutional law by a federal trial court under the Supremacy Clause of the United States Constitution.5

The question of whether a state court is required to follow a federal trial court's interpretation of federal constitutional law is largely unsettled, and the United States Supreme Court has yet to definitively address the subject. Several federal circuit courts and state supreme courts have held that state courts are bound by a decision of a lower federal court, but this rule is not universal. See, e.g., Yniguez v. Arizona (C.A.9, 1991), 939 F.2d 727, 736; Fretwell v. Lockhart (C.A.8, 1991), 946 F.2d 571, 577, reversed on other grounds (1993), 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180; Busch v. Graphic Color Corp. (1996), 169 Ill.2d 325, 335, 214 Ill.Dec. 831, 837, 662 N.E.2d 397, 403; Anderson v. Wagner (1980), 207 Neb. 87, 91, 296 N.W.2d 455, 458.

Article VI of the United States Constitution provides, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." It has long been settled that the Supremacy Clause binds state courts to decisions of the United States Supreme Court on questions of federal statutory and constitutional law. See Cooper v. Aaron (1958), 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5; Elmendorf v. Taylor (1825), 23 U.S. (10 Wheat.) 152, 6 L.Ed. 289; Martin v. Hunter's Lessee (1816), 14 U.S. (1 Wheat.) 304, 4 L.Ed. 97. The United States Supreme Court has not, however, indicated whether state courts are bound by inferior federal court decisions.

The language of the Supremacy Clause is sufficiently broad ("the Laws of the United States") to encompass all federal court decisions, and the Supreme Court has stated that state courts are bound by lower federal court decisions in cases involving the Federal Employers' Liability Act ("FELA"). In S. Ry. Co. v. Gray (1916), 241 U.S. 333, 338-339, 36 S.Ct. 558, 561, 60 L.Ed. 1030, 1034, the court

93 Ohio St.3d 423
stated, "As the action is under Federal Employers' Liability Act, rights and obligations depend upon it and applicable principles of common law as interpreted and applied in Federal courts." (Emphasis added.) Likewise, in Urie v. Thompson (1949), 337 U.S. 163, 174, 69 S.Ct. 1018, 1027, 93 L.Ed. 1282, 1294-1295, quoting the first appeal to the Supreme Court of Missouri, Urie v. Thompson (1943), 352 Mo. 211, 218, 176 S.W.2d 471, 474, the court stated that FELA does not define negligence, leaving that question to be determined "`by the common law principles as established and applied in the federal courts'" (Emphasis added.)

The holdings in these cases suggest that inferior federal court decisions bind state courts. Scholars have argued, however, that these opinions simply reaffirm the general principle of the Supremacy Clause, or declare only that the federal common law, not state law, applies...

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