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A new look at the Ohio Constitution

If you've got a case in the Ohio Supreme Court, and your client asks you after oral argument how long it will be before the court will make a decision, you can point to last week's pair of decisions and tell him, "I have no idea."  State v. Jones was argued on April 20th; State v. Mole was argued way back in July of last year.  Basically, oral argument will be held about six months after the court accepts the appeal; after that, it's anybody's guess.  At least the parties in those two cases didn't suffer the fate of the parties in State v. Shabazz:  nine months after holding oral argument, the court dismissed the case, deciding that it shouldn't have taken it in the first place.

Jones we talked about last weekMole we didn't.  Mole used a dating application on his mobile phone.  One day, he got a hit from J.S., who professed to be 18 and a high school senior.  She invited him over to her house on December 19, 2011, and led him into an unlit room in the back of the house, where the two performed oral sex on each other.

That's when J.S.'s mother walked in.

That's also when Mole found out that J.S. was actually 14.

One other thing about Mole.  He was a police officer.  So he got indicted for sexual battery under R.C. 2907.03(A)(13), which prohibits a police officer from having sex with someone under 18.  He was also prosecuted for unlawful sexual conduct with a minor, the jury hung on that, and the State ultimately dismissed the charge.  Moles had elected to try the sexual battery count to the judge, who found him guilty and sentenced him to two years in prison.

According to the Legislative Service Commission, the sexual battery statute was intended to prohibit "sexual conduct with a person other than the offender's spouse in a variety of situations where the offender takes unconscionable advantage of the victim."  That covers a wide range:  sex between minors and parents, stepparents, teachers, coaches, prison guards, clerics, and mental health professionals where the counselor tells his patient that sex is part of the necessary treatment. 

And then in 2006, a Logan County detective befriended the victim of a child sex abuse case, and upon her turning 16, had sex with her in his cruiser.  (Probably at a drive-in, if he could find one.)  And that led to the passage of RC 2907.03(A)(13), which prohibits sexual conduct where "The other person is a minor, the offender is a peace officer, and the offender is more than two years older than the other

person."

The discerning reader will note two things:  first, every other provision of the sexual battery statute concerning occupations requires showing that the occupation is related to the offense.  For example, if you're a teacher at a high school, it's a violation to have sex with a 16-year-old student at that school; it's not a violation to have sex with a 16-year-old from another school.  The idea is that you're using your authority over the victim to get her to engage in sex.  That's not true for the peace officer provision; it flatly bans a peace officer from having sex with a minor.  That leads to the second point:  Mole's case is nothing like the Logan County detective's.  There, the detective specifically used his position; here, the girl had no idea Mole was a police officer.

The court decides that the statute has no rational basis, and I'll get into that in more detail in a future post.  But more important than the result -- Chief Justice O'Connor was writing only for two other justices - was the process used to arrive at it:  the court decides the case on the basis of the Ohio constitution, not the United States Constitution. 

That's been a trend for several years.  It began with the 2002 decision in State v. Brown.  The US Supreme Court had held that the 4th Amendment permitted an arrest of a person, no matter how trivial the offense (the case involved a seat belt violation), but Brown held that the Ohio Constitution did not permit an arrest for a minor misdemeanor.  And just last year, in a different State v. Brown, the court held that since a township police officer didn't have authority to make a traffic stop outside his jurisdiction, his doing so violated the Ohio Constitution.  O'Connor's opinion details the numerous other cases where the court has similarly based its decision on the state constitution.

To be sure, that course has not run smooth; O'Connor cites several cases where she dissented from the application of the state document.  But that was then, this is now:  there's no question there are four votes for applying the protections of the Ohio Constitution to areas where the US Constitution doesn't go.  That "plurality opinion" thing?  Lanzinger concurred only in judgment, but her two-paragraph opinion concludes with, "Based on the analysis that the Ohio Constitution is a document of independent force, I join the majority in judgment only." 

Whether there will be four votes for that after November remains to be seen.  Lanzinger and Pfeifer, who joined in O'Connor's opinion, are aged out, and aren't running for re-election.  Still, O'Connor's been a very forceful chief, and her joining the side of the state constitutionalists suggests that she might bring others into the fold.

Tomorrow, we'll talk about why this is huge, especially from a 4th Amendment perspective.

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