State v. Slatter

• Decision Date: 24 June 1981
• Docket Number: No. 80-852,80-852
• Parties: , 20 O.O.3d 383 The STATE of Ohio, Appellant, v. SLATTER, Appellee.
• Court: Ohio Supreme Court

Page 452

66 Ohio St.2d 452

423 N.E.2d 100, 20 O.O.3d 383

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

No. 80-852.

Supreme Court of Ohio.

June 24, 1981.

Syllabus by the Court

R.C. 2935.26, insofar as it creates a substantive right of freedom from arrest for one accused of the commission of a minor misdemeanor, and Crim.R. 4.1, which provides a procedure for disposition of minor misdemeanor cases where citations have been issued, are not unconstitutionally in conflict. (Krause v. State, 31 Ohio St.2d 132, 285 N.E.2d 736, approved and followed.)

On October 28, 1978, Jauffre T. Slatter, appellee, was observed by two police officers to be holding an open container of an alcoholic beverage while standing on the west side of North Court Street in Athens, Ohio. The officers approached appellee and, since he was standing with a large group of people who were engaging in a "Halloween celebration," asked him to accompany them across the street. While escorting appellee across the street, one of the officers placed his hand on appellee's arm. Upon reaching the east side of North Court Street, the officers asked appellee for identification and, when appellee could not produce any, appellee was placed under arrest for a violation of an Athens city ordinance that prohibits the possession of open containers of alcohol on the public street, a minor misdemeanor. ¹ Appellee was then taken to a police cruiser for transportation to police headquarters, but before he could be placed in the cruiser one of the arresting officers was attacked from behind by an unknown assailant. When the second officer went to the defense of his partner, appellee fled the scene. Appellee was later arrested and indicted for a violation of R.C. 2921.34, escape. ²

Appellee filed a pre-trial motion to suppress at trial any evidence concerning the initial arrest for the "open container" violation, asserting that his arrest occurred on the west side of North Court Street and that such arrest was prohibited by R.C. 2935.26(A). The state of Ohio, appellant, argued that the arrest had occurred on the east side of North Court Street, after appellee had been unable to produce identification, and, thus, was proper under R.C. 2935.26(A)(2). Alternatively, appellant argued that R.C. 2935.26 was unconstitutional as being in conflict with Crim.R. 4.1(A) and (C). At the hearing on the motion, the trial court found R.C. 2935.26 not to be unconstitutionally in conflict with Crim.R. 4.1. The trial court also found:

"1.) The arrest of the defendant occurred on the West (sic) side of N. Court Street in front of the Junction Bar.

"2.) The arrest of the defendant was in violation of O.R.C. 2935.26 and therefore unlawful.

"3.) Evidence of the arrest and all surrounding or related activity is ORDERED suppressed."

Upon appeal of the constitutionality of R.C. 2935.26, the Court of Appeals for Athens County held that the statute created a substantive right of "non-arrest except where § 2935.26(A)(1), (2), (3), (4) apply. * * * This statute acts to preclude arrest and is a guarantee of personal freedom given by the legislature where no such right existed before." Thus, the statute was held to be not in conflict with a rule of procedure promulgated by this court. The judgment of the trial court was affirmed.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

David Frey, Pros. Atty., for appellant.

Lavelle & Goldsberry and Michael A. Likavec, Athens, for appellee.

WILLIAM B. BROWN, Justice.

Appellant asserts, as its sole proposition of law, that "R.C. 2935.26, insofar as it conflicts with Rules 3, 4, and 4.1 of the Ohio Rules of Criminal Procedures (sic) is in violation of Article IV, Section 5(B) of the Ohio Constitution."

Article IV, Section 5(B) of the Ohio Constitution, provides, in part: "The Supreme Court shall prescribe rules governing practice and procedure, in all courts of the State, which rules shall not abridge, enlarge, or modify any substantive right * * *. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect." Rules promulgated pursuant to this constitutional provision must be procedural in nature. Where a conflict arises between a rule and a statute, the rule will control the statute on matters of procedure. Boyer v. Boyer (1976), 46 Ohio St.2d 83, 86, 346 N.E.2d 286. Conversely, a rule may not abridge, enlarge, or modify any substantive right and a statute will control a rule on matters of substantive law. Id.

The application of the substantive-procedural distinction to a statute or rule is not without difficulty, as the substantive and procedural laws are not always mutually exclusive. See, generally, 37 Ohio St.L.J. 364; 5 Ohio Northern L.Rev. 363. This court has dealt with that issue in a series of three cases beginning with Krause v. State (1972), 31 Ohio St.2d 132, 285 N.E.2d 736. In Krause, the court considered, and rejected, an argument that Civ.R. 4.2 provided for suits to be brought against the state. ³ The court held, at page 145, 285 N.E.2d 736, that the lack of consent to suits against the state, whether viewed as a defense or as a right of the state, "falls within that body of law traditionally denominated substantive." The conclusion was achieved by application of a definition of "substantive": "(t)he word 'substantive,' as used in Section 5(B) of Article IV, is in contradistinction to the words 'adjective' or 'procedural' which pertain to the method of enforcing rights or obtaining redress. 'Substantive' means that body of law which creates, defines and regulates the rights of the parties. (Citation omitted.) The word substantive refers to common law, statutory and constitutionally recognized rights." ⁴ Id.

Also, in the same term, the court decided Gregory v. Flowers (1972), 32 Ohio St.2d 48, 290 N.E.2d 181. In Gregory, an amendment to the workers' compensation statutes had the effect of destroying appellee's existing right to seek and be awarded compensation. Though deciding that statutes of limitation may be generally classified as procedural legislation, we held, in paragraph two of the syllabus, that "(t)he statutory right to file an application for modification of an award, which right arose by operation of the workmen's compensation laws of this state, is a substantive right which accrues at the time of the claimant's injury." (Emphasis added.) This court further commented, at pages 57-58, fn. 9, 290 N.E.2d 181, that "(m)any courts have erred in proceeding upon an assumption that the supposed dividing line between the two categories has some kind of objective existence upon one side or the other of which a set of facts must always fall. Decisions, expressed in terms of locating a preexisting line instead of where the line ought to be drawn, have lent themselves immeasurably to the confusion which reigns in this whole area of law. * * * 'The precise meaning to be given to "substance" and to "procedure" ought, therefore, to be determined in the light of this underlying purpose to be fair to the individuals concerned * * *.' " ⁵

In State v. Hughes (1975), 41 Ohio St.2d 208, 324 N.E.2d 731, the court considered a conflict between R.C. 2945.68, which granted the Courts of Appeals discretion in determining whether to allow filing of a bill of exceptions by the state in a criminal matter, and App.R. 4(B), which permitted the prosecution to appeal as of right in criminal cases. In rejecting an argument that the statute was procedural and therefore superseded by the rule, the court held, at pages 210-211, 324 N.E.2d 731, that the effect of the statute "is to grant jurisdiction to appellate courts to hear appeals by the prosecution in criminal cases and to create a substantive right in the prosecution to bring such appeals * * *." ⁶ (Emphasis sic.) The right of appeal granted to the prosecution "did not exist at common law prior to the adoption of Section 6 of Article IV of the Ohio Constitution (now Section 3 of Article IV), and the implementing legislation contained in R.C. 2945.67 through 2945.70 * * *." Id., at page 210, 324 N.E.2d 731. ⁷

Pursuant to the grant of rule-making authority contained in Section 5(B), Article IV of the Ohio Constitution, this court adopted Crim.R. 4.1, which provides, in subdivision (A), in part, that "a court may establish the following procedure for all or particular minor misdemeanors other than offenses covered by the Uniform Traffic Rules." Subdivision (B) of the rule defines minor misdemeanor as "an offense for which the potential penalty does not exceed a fine of fifty dollars." Subdivision (C) provides, in part, that "(i)n minor misdemeanor cases a law enforcement officer may issue a citation." The form of the citation is also provided, including the following: "(t)he citation shall inform the defendant that, in lieu of appearing at the time and place stated, he may, within that stated time, appear personally at the office of the clerk of court and upon signing a plea of guilty and a waiver of trial pay a stated fine and stated costs, if any." Subdivision (D) requires signing of the citation by the issuing officer and delivery to the court. A fine schedule shall be established by the court pursuant to subdivision (E). Subdivision (F) provides, in part, that "(w)hen a defendant fails to appear, the court may issue a supplemental citation, or a summons or warrant under Rule 4." Finally, subdivision (G) determines that the procedure to be followed where a defendant appears but does not sign a guilty plea and waiver of trial shall be in accordance with Rule 5.

In 1978, the General Assembly enacted R.C. 2935.26 which provides, in part, that:

"(A) Notwithstanding any other provision of the Revised Code, when a law enforcement officer is otherwise authorized to arrest a person for the commission of a minor misdemeanor, the officer shall not arrest the person, but shall issue a...