State v. Ray Morgan
| Decision Date | 28 May 1987 |
| Docket Number | 2294,87-LW-1859 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. RAY MORGAN, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
ALBERT STEWART, JR., Assistant Prosecuting Attorney, Springfield for Plaintiff-Appellee.
RAY MORGAN, pro se.
Defendant-appellant Ray Morgan was an unsuccessful candidate for the office of Clark County Commissioner whose name first appeared on the ballot in the general election held November 6, 1984 (Tr. 18-20, 33, 85, 123-125). See also Defendant's Exhibit 3 at 34-35, Defendant's Exhibit 4. On October 18, 1984, the Ohio Ethics Commission sent Mr. Morgan a certified letter informing him that according to the Commission's records he had not yet submitted a financial disclosure statement for calendar year 1983 as he was required to do under R.C. 102.02.®1¯ The letter requested that Mr. Morgan file a financial disclosure form with the Commission by November 2, 1984. It appears that after making two unsuccessful attempts to notify Mr. Morgan, the post office returned the letter to the Ethics Commission on November 3, 1984 (Tr. 25, 33-34, 79-80, 93-94). See also, Defendant's Exhibit 3 at 14-16, State's Exhibit 2.
From the record, it was apparently Mr. Morgan's contention during the proceedings below that he did not receive a financial disclosure form when he filed his petition of candidacy with the Clark County Board of Elections and that it was only through his own research that he discovered that he was statutorily required to file a financial disclosure statement (Tr. 20-21, 90-91). See also, Defendant's Exhibit 3 at 4, 33, 38. It also appears to have been Mr. Morgan's contention that he had been unaware that the certified letter had been sent by the Ohio Ethics Commission (Tr. 25-26). See also, Defendant's Exhibit 3 at 25.
Ruth Hall, the financial disclosure coordinator for the Ohio Ethics Commission, testified that Mr. Morgan called the Commission offices in October of 1984 and told her that it was inconvenient for him to go to the post office as he lived in a remote rural area. Ms. Hall testified that she sent Mr. Morgan a copy of the financial disclosure form that day via regular mail (Tr. 23-26, 28-29). See also, Defendant's Exhibit 3 at 17, State's Exhibit 1.
On December 14, 1984, Mr. David Freel, counsel for the Ohio Ethics Commission, sent a letter to the Clark County Court of Common Pleas requesting that the court direct the Clark County Sheriff's Department to serve notice on Mr. Morgan that a complaint had been filed against him alleging that he had violated R.C. 102.02 and that a hearing on the matter had been scheduled for January 17, 1985 (Tr. 34-35, 66-67). See also, Defendant's Exhibit 3 at 18-22, State's Exhibit 3. According to the record, the Clark County Sheriff's Department served Mr. Morgan with notice of the hearing on December 17, 1984. See, State's Exhibit 3.
Mr. Morgan came to the hearing and submitted a financial disclosure form dated November 2, 1984 to Mr. Freel, who was representing the Ohio Ethics Commission at the hearing. See, Defendant's Exhibit 3 at 1-2. However, in response to questions six through twelve, the questions pertaining to sources of income, gifts, investments, interests in real estate and names of debtors and creditors, Mr. Morgan wrote "SEE ATTACHED STATEMENT[.]' In a five-page memorandum attached to the financial disclosure statement, Mr. Morgan asserted his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and refused to provide the requested information. Mr. Morgan also cited Article I, Section 10 of the federal Constitution and various provisions of the United States Code for the proposition that the only constitutionally permissible forms of currency in the United States are gold and silver coin. Mr. Morgan reasoned that as he received no gold or silver coin in 1983, he received no "lawful money' for that period, and therefore had nothing to disclose.®2¯ See, State's Exhibit 4.
In his report to the Ethics Commission, the hearing examiner concluded that as Mr. Morgan had failed to provide the information required by R.C. 102.02(A), he had knowingly failed to file a financial disclosure statement. According to the hearing examiner, the facts of the case constituted a violation of R.C. 102.02(C).®3¯ See, Defendant's Exhibit 4.
At a meeting held on April 11, 1985, the Ohio Ethics Commission adopted the findings of the hearing examiner and determined that the matter should be referred to the appropriate prosecutorial agency for further action (Tr. 38-39, 55-56, 58-61, 68-69, 99, 109).®4¯ See also, Defendant's Exhibit 6.
As a result of the Commission's decision, Mr. Freel contacted the Clark County Prosecutor's office in May of 1985 (Tr. 69-70). On June 12, 1985, Mr. David E. Smith of the Clark County Prosecutor's office sent Mr. Freel a letter stating that the facts of the case disclosed a possible violation of R.C. 102.02(C), a fourth-degree misdemeanor. According to the letter, misdemeanor prosecutions in Clark County were brought in the Springfield Municipal Court by the court's prosecutorial staff, which was employed by the City of Springfield. The letter suggested that Mr. Freel contact Mr. Patrick Bonfield, Springfield City Law Director. On June 18, 1985, Mr. Freel sent Mr. Bonfield a letter asking that the Springfield City Law Department review the file on Mr. Morgan's case (Tr. 69-71, 74-75). See also, State's Exhibit 6.
Acting on behalf of the Ohio Ethics Commission, Mr. Freel signed a complaint against Mr. Morgan on July 29, 1986. See, Item 1 of the Transcript of Docket Entries. A trial to the court was held in the Springfield Municipal Court on September 22, 1986 and continued to September 24. On October 23, 1986, the trial court entered a finding that Mr. Morgan was guilty of violating R.C. 102.02(C). See, Item 1 and Item 35 of the Transcript of Docket Entries. From the trial court's finding of guilt and sentence and fine imposed thereon, Mr. Morgan hereby appeals to this Court, presenting seven assignments of error. As the first two assignments of error are closely related, we will consider them together.
In his first two assignments of error, Mr. Morgan presents a miscellany of attacks on R.C. 102.02, the actions of the Ohio Ethics Commission, and the decision of the trial court. His primary point of contention appears to be that the financial disclosure requirements set forth in R.C. 102.02(A) are contrary to both the Ohio Constitution and the United States Constitution. We note that while we have been unable to find a decision in Ohio which expressly considers the constitutionality of R.C. 102.02, our research discloses that similar statutes in other jurisdictions have been challenged, sometimes successfully, on various constitutional grounds. See generally, Annotation, Validity and Construction of Orders and Enactments Requiring Public Officers and Employees, or Candidates for Office, to Disclose Financial Condition, Interests, or Relationships (1983), 22 A.L.R. 4th 237.
In the case at hand, Mr. O. Morgan's first attack on R.C. 102.02 appears to be that the statute impermissibly interferes with what he considers to be his right under Article I, Section 2 of the Ohio Constitution to take an active role in government.®5¯ However, contrary to Mr. Morgan's assertions, we find no support for his argument that there is a fundamental right to run for elected office While the United States Supreme Court held in Bullock v. Carter (1972), 405 U.S. 134, that statutes which affect candidates may be strictly scrutinized if they have a secondary impact on the exercise of voting rights, the Court did not adopt a rule that regulations on candidacy are per se unconstitutional. In the present case, there is no suggestion by Mr. Morgan that R.C. 102.02 discriminates against certain candidates or has the effect of preventing certain segments of the population from being represented in the electoral process. In our opinion, the mere fact that Mr. Morgan finds the financial disclosure requirements of R.C. 102.02(A) inhibitory is not enough to invoke a heightened degree of judicial scrutiny. See, Plante v. Gonzalez (C.A.5, 1978), 575 F. 2d 1119, 1126.
Mr. Morgan also argued extensively during the proceedings below that were he to comply with R.C. 102.02, the information he would provide might possibly serve as a link in a chain of evidence against him in a future criminal prosecution. Therefore, according to Mr. Morgan, to punish him for refusing to provide this information forces him to waive his privilege against self-incrimination. For the reasons set forth below, we find this argument unpersuasive.
We note first that R.C. 102.02 is essentially regulatory and noncriminal in nature; criminal penalties only attach when an individual knowingly fails to provide the requested information or else files a false statement. R.C. 102.02(C) and (D). We note also that while the general public is not subject to R.C. 102.02, the financial disclosure requirements apply uniformly to all...
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