State v. Ward, 2005-CA-75.

• Decision Date: 24 March 2006
• Docket Number: No. 2005-CA-75.,2005-CA-75.
• Parties: The STATE of Ohio, Appellant, v. WARD, Appellee.
• Court: Ohio Court of Appeals

849 N.E.2d 1076

2006-Ohio-1407

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

No. 2005-CA-75.

Court of Appeals of Ohio, Second District, Greene County.

Decided March 24, 2006.

William F. Schenck, Greene County Prosecuting Attorney, and Elizabeth A. Ellis, Assistant Prosecuting Attorney, for appellant.

Ellen C. Weprin, for appellee.

FAIN, Judge.

{¶ 1} This appeal concerns the issue of whether the provision in the domestic-violence statute, R.C. 2919.25(F)(1)(a)(i), extending the protections of that criminal statute to "a person living as a spouse" offends the Defense of Marriage Amendment to the Ohio Constitution adopted by the voters in 2004, Section 11, Article XV, because it recognizes "a legal status for relationships of unmarried individuals that intends to approximate the * * * effect of marriage." We conclude that it does. Consequently, we conclude that the trial court did not err in dismissing defendant-appellee Karen Ward's indictment for domestic violence upon that ground.

Background

{¶ 2} The state alleges that Ward assaulted her "live-in boyfriend," Fred A. Almonds Jr. She was arrested and ultimately charged by indictment with one count of domestic violence as a felony of the fourth degree.

{¶ 3} Ward moved to dismiss the charge against her, contending that the provision in the domestic-violence statute extending its protections to "a person living as a spouse," upon which the indictment is based, violates the recently-adopted Defense of Marriage Amendment. The trial court agreed with Ward and dismissed the indictment. The state appeals.

{¶ 4} Although no briefs of amicus curiae have been filed in this case, we are presently entertaining a number of appeals involving this precise issue in which four briefs of amicus curiae have been filed. We have considered those briefs, all of which have been helpful, in deciding this appeal. They are (1) the brief of the ACTION Coalition of Battered Women, the Ohio Domestic Violence Network, and the Ohio NOW Education and Legal Fund, filed June 6, 2005, in support of the state of Ohio in State v. Steinman, Greene App. No. 2005-CA-0046; (2) the brief of the Lambda Legal Defense and Education Fund, Inc., filed June 7, 2005, in support of the state of Ohio in the same cause; (3) the brief of the Citizens for Community Values, filed August 23, 2005, in support of the defendant-appellant in State v. McIntosh, Montgomery App. No. 21093, 2006-Ohio-1815, 2006 WL 925179; and (4) the brief of the American Civil Liberties Union of Ohio Foundation, Inc., filed October 7, 2005, in support of the state of Ohio in State v. McIntosh, supra. Some of these amicus briefs raise issues that have not been raised by the parties either in the trial court or in this court—e.g., that the Defense of Marriage Amendment violates the Supremacy and Equal Protection clauses of the United States Constitution. Because these issues were not raised in the trial court, we deem them waived and do not reach them.

{¶ 5} Obviously, we have also considered the briefs of Ward and the state.

The Assignment of Error

{¶ 6} "The trial court erred as a matter of law when it declared Revised Code Section 2919.25, unconstitutional, as it relates to cohabitating partners, pursuant to Article 15, Section 11 of the Ohio Constitution."

{¶ 7} This is an issue of first impression for this court. Impressive judicial authorities have already reached opposite conclusions on this issue. See, e.g., State v. Newell, 2005-Ohio-2848, 2005 WL 1364937, finding no constitutional violation, and State v. Burk (March 23, 2005), Cuyahoga Common Pleas No. CR-462510, 2005 WL 786212, finding a constitutional violation. The members of the panel deciding this appeal have reached opposite conclusions. Obviously, the Supreme Court of Ohio will ultimately be called upon to decide this issue.

Principles of Constitutional Construction

{¶ 8} In its amicus brief, the American Civil Liberties Union of Ohio appears to be arguing that where there is a potential conflict between a statute and the Ohio Constitution, not only must the statute be construed, if reasonably possible, so as to avoid a conflict—a familiar principle of statutory construction—but the Ohio Constitution, also, must be construed, if it is reasonably possible to do so, to avoid a conflict with the statute. We reject this notion.

{¶ 9} The Constitution of Ohio, including, of course, Section 11, Article XV, is the supreme law of this state, subordinate only to the Constitution of the United States and the laws of the United States enacted consistently with the federal constitution. The provisions of the Constitution of Ohio may not be required to defer to statutory law, whether directly or indirectly through the mechanism of deferential construction.

{¶ 10} The notion that two provisions of law should be construed, if reasonably possible, to avoid conflicting with one another is the principle of in pari materia: two laws on the same subject matter must be construed with reference to each other. Black's Law Dictionary, (8th Ed. Rev.2004) 807. Had the citizens of Ohio, in adopting the provisions of the Defense of Marriage Amendment, wished those provisions to be in pari materia with the statutory law of Ohio, to be construed with reference to other statutory law, they could have enacted those provisions as ordinary law, using the provisions in Section 1b, Article II for the enactment of ordinary law by means of an initiative petition. They did not do so; to the contrary, the measure was proposed by initiative petition as an amendment to the Constitution and was adopted as part of the Ohio Constitution. It is no more appropriate to construe the provisions of the Defense of Marriage Amendment deferentially to existing statutes than it would be to construe the provisions of Section 11, Article I, for freedom of speech and of the press in a manner deferential to statutory law.

{¶ 11} Our first task is to determine the meaning of Section 11, Article XV, the Defense of Marriage Amendment, and only then to determine whether the provision of the domestic-violence statute upon which the state relies violates the Ohio Constitution.

{¶ 12} The state cites State ex rel. Lake Cty. Bd. of Commrs. v. Zupancic (1991), 62 Ohio St.3d 297, 303, 581 N.E.2d 1086, for the proposition that "Ohio courts presume the body enacting the [constitutional] amendment is aware of existing constitutional and statutory provisions and their judicial construction," and then suggests that had the electorate, in adopting the Defense of Marriage Amendment, intended to effectively repeal certain specific statutory provisions, including the "person living as a spouse" provision in R.C. 2919.25(F)(1)(a)(i), the proposed amendment submitted to the electors for adoption would have said so. The citation to Zupancic is from the dissenting opinion. The majority opinion rejected this analysis, preferring the "long-standing rule of construction mandat[ing] that we consider the common and ordinary meaning of the terms contained within our Constitution in order to interpret them properly." Id. at 300, 581 N.E.2d 1086. And in State ex rel. Rose v. Donahey (1919), 100 Ohio St. 104, 125 N.E. 908, a case cited by the American Civil Liberties Union of Ohio Foundation, the Supreme Court recognized that the adoption of an amendment to the Ohio Constitution may implicitly have the effect of repealing various statutes that are in conflict with the newly adopted amendment.

{¶ 13} In State v. Rodgers, 131 Ohio Misc.2d 1, 2005-Ohio-1730, 827 N.E.2d 872, another case cited by the American Civil Liberties Union of Ohio Foundation, State ex rel. Smead v. Union Twp. (1858), 8 Ohio St. 394, 399, 1858 WL 30, is cited for the following proposition: "If any reasonable construction may be given to each [a statute and a constitutional provision], so that both may stand, such construction must be given." The quote is accurate, but the words are dictum. In that case, the issue was whether a bond issue authorized by the General Assembly before the adoption of the Ohio Constitution of 1851 could survive the following provision in that constitution:

{¶ 14} "The general assembly shall never authorize any county, town, or township, by vote of its citizens or otherwise, to become a stockholder in any joint stock company, corporation, or association whatsoever, or to raise money for, or loan its credit to, or in aid of, any such company, or corporation, or association."

{¶ 15} The Supreme Court held that the above-quoted provision prohibited the General Assembly from enacting laws authorizing bond issues in the future, but did not prevent laws previously enacted from having effect. In reaching this conclusion, it was aided by Section 1 of the schedule in the new Constitution, which provided that "all laws of this state in force on the first day of September, 1851, not inconsistent with this constitution, shall continue in force until amended or repealed." The court then articulated the principle, quoted above, that both the Constitution and a statute must be construed, if possible, so as to avoid a conflict, but went on to observe:

{¶ 16} "But in this case there is no inconsistency in the language of the acts of assembly and the provision of the constitution under consideration. The provision of the constitution is prospective in its terms." Id. at 400.

{¶ 17} In short, the court in State ex rel. Smead v. Union Twp. did exactly what we propose to do herein: it first construed the Constitution, and then determined whether the statutory enactment before it offended the Constitution. It did observe that ambiguous language in both the Constitution and a statute should be construed, if possible, to avoid a conflict, but this observation was gratuitous—the court found no ambiguity in the constitutional provision it was considering.

{¶ 18} The Defense of Marriage Amendment is no less a part of the fundamental, organic law of Ohio by reason...