State v. Carswell

• Decision Date: 25 July 2007
• Docket Number: No. 2006-0151.,2006-0151.
• Citation: 114 Ohio St.3d 210,871 N.E.2d 547,2007 Ohio 3723
• Parties: The STATE of Ohio, Appellee, v. CARSWELL, Appellant.
• Court: Ohio Supreme Court

871 N.E.2d 547

114 Ohio St.3d 210

2007-Ohio-3723

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

No. 2006-0151.

Supreme Court of Ohio.

Submitted December 12, 2006.

Decided July 25, 2007.

Thomas G. Eagle Co., L.P.A., and Thomas G. Eagle, Lebanon, for appellant.

Rachel A. Hutzel, Warren County Prosecuting Attorney, and Joshua A. Engel and Lew Bechtol, Assistant Prosecuting Attorneys, for appellee.

Langdon & Hartman, L.L.C., David R. Langdon, and Joshua B. Bolinger, Cincinnati, urging reversal for amicus curiae Citizens for Community Values.

Robert L. Tobik, Cuyahoga County Public Defender, and Erika Cunliffe, Assistant Public Defender, and Charles B. Clovis, urging reversal for amici curiae Cuyahoga County Public Defender and Ohio Association of Criminal Defense Lawyers.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association.

Gerhardstein, Branch & Laufman and Alphonse A. Gerhardstein, Cincinnati; and Camilla B. Taylor, urging affirmance for amicus curiae Lambda Legal Defense and Education Fund, Inc.

Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Fernando R. Laguarda, Michael T. Hass, and Helen Gerostathos Guyton, Washington, DC; and Bricker & Eckler, L.L.P., and Natalie Trishman Furniss, Columbus, urging affirmance for amicus curiae National Network to End Domestic Violence et al.

Carrie L. Davis, Cleveland, urging affirmance for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc., and American Civil Liberties Union.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Matthew E. Meyer, Assistant Prosecuting Attorney, urging affirmance for amicus curiae, the Cuyahoga County Prosecutor's Office.

Michael R. Smalz, Columbus; and Alexandria M. Ruden, Jefferson; and Lisa Eschleman, Columbus, urging affirmance for amici curiae Action Ohio Coalition for Battered Women, Ohio Domestic Violence Network, and Ohio NOW Education and Legal Fund.

MOYER, C.J.

{¶ 1} In this appeal, we are asked to determine whether the domestic-violence statute codified at R.C. 2919.25 violates Section 11, Article XV of the Ohio Constitution.

{¶ 2} In November 2004, Ohio voters approved an amendment to the Ohio Constitution known as the Defense of Marriage Amendment or Issue 1. Voter approval of Issue 1 added Section 11, Article XV to the Ohio Constitution. Section 11 states: "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."

{¶ 3} Appellant, Michael Carswell, was indicted on one count of domestic violence in violation of R.C. 2919.25(A), which provides: "No person shall knowingly cause or attempt to cause physical harm to a family or household member." The alleged victim was a female to whom Carswell was not married. The state intended to present evidence that Carswell's alleged victim had been "living as a spouse" with Carswell and that she was therefore a "family or household member" under R.C. 2919.25(F).

{¶ 4} The trial court granted Carswell's motion to dismiss the indictment, concluding that the domestic-violence statute violated Section 11, Article XV of the Ohio Constitution, because the statute recognized a legal status similar to marriage for unmarried persons. The court of appeals reversed, holding that while the statute does create a special class of unmarried persons living together as a spouse, this classification did not create a legal status akin to marriage.

{¶ 5} We accepted Carswell's discretionary appeal.

{¶ 6} We begin our analysis with the established rule that statutes are presumed to be constitutional. Desenco, Inc. v. Akron (1999), 84 Ohio St.3d 535, 538, 706 N.E.2d 323. Carswell argues that this presumption does not apply to the statute at issue in the case at bar, because R.C. 2919.25 was adopted prior to voter approval of Section 11, Article XV, and so, in drafting the statute, the General Assembly could not have tried to conform the statute to the constitution. That fact, however, does not remove the presumption of validity in this case, because the general rule as to the interpretation of constitutional amendments is that "`[t]he body enacting the amendment will be presumed to have had in mind existing constitutional or statutory provisions and their judicial construction, touching the subject dealt with.'" State ex rel. Lake Cty. Bd. of Commrs. v. Zupancic (1991), 62 Ohio St.3d 297, 303, 581 N.E.2d 1086 (Moyer, C.J., dissenting), quoting State ex rel. Engle v. Indus. Comm. (1944), 142 Ohio St. 425, 432, 27 O.O. 370, 52 N.E.2d 743. We proceed with the presumption, notwithstanding the absence of any empirical data to support it, that the drafters of the proposed constitutional amendment and the voters who approved it knew of the domestic-violence statute and that its purpose is the protection of persons from acts of domestic violence.

{¶ 7} The strong presumption of constitutionality is supported by another principle: "Before we can declare a statute unconstitutional, `"it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible."'" Desenco, 84 Ohio St.3d at 538, 706 N.E.2d 323, quoting Doyle v. Ohio Bur. of Motor Vehicles (1990), 51 Ohio St.3d 46, 47, 554 N.E.2d 97, quoting State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, paragraph one of the syllabus.

{¶ 8} Issue 1 did not explicitly repeal R.C. 2919.25. Therefore, if we are to conclude that R.C. 2919.25 was repealed by Issue 1, we must conclude that it was repealed by implication, but we have held that such a finding is disfavored. This court has repeatedly held that repeals by implication are disfavored as a matter of judicial policy. State ex rel. Kelley v. Clearcreek Local School Dist. Bd. of Edn. (1990), 52 Ohio St.3d 93, 95, 556 N.E.2d 173 ("repeals by implication are disfavored as a matter of judicial policy"); see, also, State ex rel. Specht v. Painesville Twp. Local School Dist. Bd. of Edn. (1980), 63 Ohio St.2d 146, 148, 17 O.O.3d 89, 407 N.E.2d 20.

{¶ 9} Addressing whether certain statutes were repealed by the constitution of 1851, we held, "The rule, that repeals by implication are not favored, is applicable to the inquiry whether any particular enactment has ceased to be in force on account of repugnancy to the new constitution. * * * The repugnancy which must cause the law to fall, must be necessary and obvious; if by any fair course of reasoning, the law and the constitution can be reconciled, the law must stand." Cass v. Dillon (1853), 2 Ohio St. 607, 608; for same holding with regard to the Constitution of 1912 see State v. Cameron (1914), 89 Ohio St. 214, 106 N.E. 28, paragraph two of the syllabus, overruled in part on other grounds by Eastman v. State (1936), 131 Ohio St. 1, 5 O.O. 248, 1 N.E.2d 140, paragraph twelve of the syllabus. Thus, R.C. 2919.25 is unconstitutional only if it is clearly incompatible and irreconcilable with Section 11, Article XV.

{¶ 10} In determining whether a statute and a constitutional provision are clearly incompatible, we use the plain and ordinary meaning of the words in question and attempt to reconcile the words of the statute with the terms of the constitution whenever possible. Zupancic, 62 Ohio St.3d at 300, 581 N.E.2d 1086 ("A longstanding rule of construction mandates that we consider the common and ordinary meaning of the terms contained within our Constitution in order to interpret them properly"); Desenco, 84 Ohio St.3d at 538, 706 N.E.2d 323 ("Courts have a duty to liberally construe statutes in order to save them from constitutional infirmities").

{¶ 11} We consider first the terms of the constitutional provision. The first sentence of Section 11, Article XV, prohibits the state from recognizing as a marriage any union between persons other than one man and one woman. That constitutional prohibition is clear and is not at issue in this case. At issue is the second sentence of Section 11, Article XV, which bars the state from creating or recognizing a legal status for unmarried persons that "intends to approximate the design, qualities, significance or effect of marriage." This appeal requires this court to determine whether the indictment of Carswell for knowingly causing or attempting to cause physical harm to a "person living as a spouse" with him is vitiated because the statute under which he was indicted conflicts with the provision of Section 11, Article XV that prohibits the state from creating or recognizing a legal status for unmarried persons that approximates marriage.

{¶ 12} The term "legal status" is not defined in the amendment, nor is it defined in the case law of this court. A dictionary definition of the term "status" is succinctly stated as "[a] person's legal condition, whether personal or proprietary; the sum total of a person's legal rights, duties, liabilities, and other legal relations." Black's Law Dictionary (8th Ed.2004) 1447. Even more concisely, the term "status" is defined as "[t]he standing of a person before the law." Random House Dictionary of the English Language (2d Ed.1987) 1862.

{¶ 13} Under these definitions, being married is a status. Marriage gives individuals a standing before the law. Being married gives a person certain legal rights, duties, and liabilities. For example, a married person may not testify against his or her spouse in some situations. R.C. 2945.42. A married person may inherit property from a spouse who dies intestate. R.C. 2105.06. The definition of "status," our understanding of the legal responsibilities of marriage, and the rights and duties created by the status of...