State v. Wyant

             OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellee, v. Wyant, Appellant.
The State of Ohio, Appellant, v. May et al., Appellees.
The State of Ohio, Appellant, v. Van Gundy et al., Appellees.
[Cite as State v. Wyant (1993),      Ohio St.3d      .]
Criminal law -- R.C. 2927.12, the ethnic intimidation law, is
     constitutional under the United States and Ohio
     Constitutions.

R.C. 2927.12, the Ohio Ethnic Intimidation Act, is
     constitutional under the United States and Ohio
     Constitutions. (Wisconsin v. Mitchell [1993], 508
     U.S.      , 

, 

, followed;
     State v. Wyant [1992], 

, 

,
     vacated.)

     (Nos. 91-199, 91-1519 and 91-1211/91-1589 -- Submitted
October 12, 1993 -- Decided January 12, 1994.)
     On Remand from the United States Supreme Court, No. 92-568.

     W. Duncan Whitney, Delaware County Prosecuting Attorney,
and Sue Ann Reulbach, Assistant Prosecuting Attorney, for
appellee in case No. 91-199.
     Mathias H. Heck, Jr., Montgomery County Prosecuting
Attorney, and Carley Ingram, Assistant Prosecuting Attorney,
for appellant in case No. 91-1519.
     Michael Miller, Franklin County Prosecuting Attorney, and
Katherine J. Press, Assistant Prosecuting Attorney, for
appellants in case Nos. 91-1211/91-1589.
     Lee I. Fisher, Attorney General, Simon B. Karas, Deputy
Chief Counsel, and Andrew S. Bergman, Assitant Attorney
General, as suplementary counsel for appellee in case No.
91-199 and appellants in case Nos. 91-1211/91-1589 and 91-1519.
     Gloria A. Eyerly, Interim Ohio Public Defender, Susan B.
Gellman, Assistant Public Defender, and Robert L. Lane, Chief
Appellate Counsel, for appellant in case No. 91-199.
     Terry L. Lewis, for appellee James B. May, Jr. in case
91-1519.
     Gary C. Schaengold for appellee Mark J. Staton in case No.
91-1519.
     Gary W. Crim, for appellee Aaron L. Plessinger in case No.
91-1519.
     Harold Wonnell, for appellee Clancy Van Gundy in case Nos.
91-1211/91-1589.
     Andrew E. Lyles, for appellee Casey Van Gundy in case Nos.
91-1211/91-1589.
     Samuel B. Weiner, for appellee Franklin D. Clay in case
Nos. 91-1211/91-1589.
     Judith M. Stevenson, Franklin County Public Defender, and
Allen V. Adair, Assistant Public Defender, for appellee Robert
Eric Blazer in case Nos. 91-1211/91-1589.
     Tyack & Blackmore Co., L.P.A., and Thomas M. Tyack, for
appellee Bryan Krebs in case Nos. 91-1211/91-1589.
     Arnold S. White, Daniel T. Kobil and Susan B. Gellman,
American Civil Liberties Union of Ohio Foundation, for appellee
Charles Culp in case Nos. 91-1211/91-1589.
     Terry Breedlove, Jr., pro se, in case Nos. 91-1211/91-1589.
     Rinehart Law Office and Harry R. Reinhart; Gold, Rotatori,
Schwartz Co., L.P.A., and John Pyle; and Charles E. Atwell,
urging reversal for amici curiae, National and Ohio
Associations of Criminal Defense Lawyers in case No. 91-199 and
affirmance in case Nos. 91-1519 and 91-1211/91-1589.
     Bricker & Eckler and Sarah J. DeBruin, urging reversal for
amicus curiae, American Civil Liberties Union of Ohio in case
No. 91-199.
     Robert D. Horowitz, Stark County Prosecuting Attorney,
Kristine Wilson Rohrer and Ronald M. Caldwell, Assistant
Prosecuting Attorneys; John E. Murphy, Executive Director; Paul
Cox; and Robert Cornwell, Executive Director, urging affirmance
for amici curiae, Ohio Prosecuting Attorney's Association,
Fraternal Order of Police and Buckeye State Sheriff's
Association in case NO. 91-199.
     Ronald J. O'Brien, Columbus City Attorney, Sharon Sobol
Jordan, Cleveland Law Director, Fay Dupuis, Cincinnati City
Solicitor, J. Anthony Sawyer, Dayton Law Director, and Edwin
Romero, Youngstown Law Director, urging reversal for amici
curiae, cities of Columbus, Cleveland, Cincinnati, Dayton and
Youngstown in case Nos. 91-1519 and 91-1211/91-1589 and
affirmance in case No. 91-199.
     Jones, Day, Reavis & Pogue, Steven T. Catlett, Richard A.
Cordray and Jeffrey S. Sutton; Schwartz, Kelm, Warren &
Rubenstein and Nelson E. Genshaft; Ruth L. Lansner, Steven M.
Freeman and Michael A. Sandberg, urging affirmance for amici
curiae, Anti-Defamation League, Columbus Urban League, National
Association for the Advancement of Colored People (Columbus and
Dayton Branches), Ohio Council of Churches, Japanese American
Citizens League (Ohio Chapter), Ohio Human Rights Bar
Association and Organization of Chinese Americans (Greater
Cleveland Chapter) in case No. 91-199, and reversal in case
Nos. 91-1519 and 91-1211/91-1589.
     Alphonse A. Gerhardstein, urging reversal for amici
curiae, Housing Oportunities Made Equal (HOME), Cincinnati
Multiracial Alliance, Cuyahoga Plan of Ohio, Inc., Toledo Fair
Housing Center, Cincinnati Human Relations Commission and
National Fair Housing Alliance in case Nos. 91-1211/91-1589.
     These cases come to us on remand from the United States
Supreme Court for the purpose of "further consideration in
light of Wisconsin v. Mitchell, 508 U.S.      [

,

] (1993)."
     We have reviewed the United States Supreme Court's opinion
in Wisconsin v. Mitchell (1993), 508 U.S.     , 

,

, our opinion in State v. Wyant (1992), 

, 

, and the briefs of the parties. For
the reasons stated in Wisconsin v. Mitchell, we vacate our
opinion in State v. Wyant and uphold the constitutionality of
R.C. 2927.12, the ethnic intimidation law, under both the
United States and Ohio Constitutions.
     In case No. 91-199, we affirm the judgment of the court of
appeals and reinstate the judgment of the trial court. In case
No. 91-1519, we reverse the judgment of the court of appeals
and remand for a new trial. In case Nos. 91-1211 and 91-1589,
we reverse the judgment of the court of appeals and remand for
a new trial.
                                     Judgments accordingly.
     Moyer, C.J., Douglas, Resnick and F.E. Sweeney, JJ.,
concur.
     Wright and Pfeifer, JJ., dissent.
     A.W. Sweeney, J., dissents and concurs in Part II of the
dissenting opinion of Wright, J., but does not participate in
State v. Van Gundy, case Nos. 91-1211 and 91-1589.
     Wright, J., dissenting.    I have always believed that
legal scholars and most judges consider freedom of speech
provisions a bulwark to be defended. Today, sad to say, we
have beaten a hasty retreat from our previous pronouncement in
this very case, and Section 11, Article I of the Ohio
Constitution is being treated more as an obstacle to be avoided
than as an affirmative statement of a fundamental right and a
ringing statement of truth.
     I recognize the tension between the search for social
justice and the long and honorable tradition of defending
speech from government intrusion. I also appreciate the
political benefits of punishing the distasteful "hate speech"
found here. However, I cannot compromise the principles noted
above and must respectfully dissent.
     I am extremely disappointed that a majority of this court
are willing to dispose of a case of significant constitutional
import through a brief entry devoid of analysis. I feel
certain that the United States Supreme Court, in remanding this
case, expected this court to engage in a thorough analysis not
only of the application of Wisconsin v. Mitchell (1993), 508
U.S.      , 

, 

, but also of
Section 11, Article I of the Ohio Constitution. Certainly, the
citizens of Ohio deserve no less.
     If the Ohio statute were identical or nearly identical to
the Wisconsin statute, a rubber-stamp entry would be
understandable. However, the two statutes are completely
different in both wording and scope of application, as are the
free speech provisions of the United States Constitution and
the Ohio Constitution.
     Under the Wisconsin statute, the maximum sentence a judge
may impose is increased when the defendant intentionally
selects the victim because of his or her protected status.1
Moreover, the Wisconsin statute applies across the board to all
criminal offenses (except those where proof of race, ancestry,
etc. is already an element of the crime itself). Former Wis.
Stat. Section 939.645(4). In contrast, the Ohio statute
creates a new offense, ethnic intimidation (R.C. 2927.12), one
element of which is the commission of any of five offenses:
aggravated menacing (R.C. 2903.21); menacing (R.C. 2903.22);
criminal damaging or endangering (R.C. 2909.06); criminal
mischief (R.C. 2909.07), and certain types of telephone
harassment (R.C. 2917.21[A][3], [4], or [5]). A defendant can
be found guilty under R.C. 2927.12(A) if he or she violates one
of the predicate offenses "by reason of the race, color,
religion, or national origin of another person or group of
persons." Conviction under R.C. 2927.12 is an offense one
degree higher than the predicate offense. R.C. 2927.12(B).
     Because of these differences between the Wisconsin statute
and the Ohio statute, it is not at all apparent that the
Supreme Court's ruling in Wisconsin v. Mitchell mandates
holding that the Ohio statute is constitutional. In fact, I am
persuaded that these critical differences support an opposite
conclusion. I find the Wisconsin statute distinguishable from
the Ohio statute in ways which render the Ohio statute
unconstitutional under both the United States and Ohio
Constitutions.
                               I
     Of particular concern is the difference in the scope of
application of the statutes. Under the Wisconsin statute, the
penalty enhancement for intentional selection of the victim
applies to almost all offenses. On the other hand, the
predicate offenses upon which the Ohio statute is based are
limited to those criminal offenses most closely associated with
expressive conduct or unprotected speech. I recognize and
agree that the state may punish some speech, such as fighting
words. However, the government may not make distinctions based
on the viewpoint or content of the speech. This focus on
expressive conduct makes the Ohio statute analogous to the
statute held unconstitutional by the United States Supreme
Court in R.A.V. v. St. Paul (1992), 505 U.S.      , 

, 

. As the court in Mitchell characterized
it, R.A.V. involved a challenge to a municipal ordinance which
prohibited the use of "fighting words" that insult or provoke
violence "on the basis of race, color, creed, religion or
gender …." In Mitchell the United States Supreme Court
distinguished the Wisconsin statute from the ordinance in
R.A.V. "Because the ordinance only proscribed a class of
'fighting words' deemed particularly offensive by the city -
i.e., those that 'contain … messages of "biased-motivated"
hatred,' 505 U.S. at     , 112 S.Ct. [at 2547-2548], 120
L.Ed.2d [at 323] - we held that it violated the rule against
content-based discrimination. See, 

 at       , 112 S.Ct. [at
2547-2548], 120 L.Ed.2d [at 323-324]. But whereas the
ordinance struck down in R.A.V. was explicitly directed at
expression (i.e., 'speech' or 'messages') 

 at      , 112
S.Ct. [at 2547], 120 L.Ed.2d [at 322], the statute in this case
is aimed at conduct unprotected by the First Amendment."
Mitchell at       , 

, 

.
     In the present case, the conduct of the defendants which
is unprotected by the First Amendment, i.e., the making of
menacing threats, is already prosecutable under R.C. 2903.21
and 2903.22. A prosecution under R.C. 2927.12 is aimed at
punishing the content of the "fighting words" used. Consistent
with the Supreme Court's ruling in R.A.V., the state may not
proscribe a class of "fighting words" which it deems to be
particularly offensive. Thus, there is nothing in the Mitchell
decision to change our previous conclusion that R.C. 2927.12
"constitutes a greater infringement on speech and thought" than
the Wisconsin statute because the Ohio statute "singles out
racial and religious hatred as a viewpoint to be punished."
State v. Wyant (1992), 

, 

 ("Wyant I").
     A clear example of the difference between the Wisconsin
and Ohio statutes can be seen by applying the statutes to
Wyant's conduct. Wyant's conduct would not violate the
Wisconsin standard. There is no evidence he selected his
victims because they are black. Rather, there is evidence he
selected his victims because they had a camp site Wyant wanted
his relatives to have and because they had complained to a park
official about Wyant's playing loud music. Certainly Wyant
chose to use certain words because of the race of his victims.
But this fact highlights the problem with the Ohio statute.
Wyant was convicted of a felony instead of a misdemeanor solely
because he made racial references in his menacing threats.
Wyant was more severely punished because of his purported
racist feelings, not because of his conduct. In effect, Wyant
received six months for aggravated menacing and an additional
one year for his expressed racist thoughts. As deplorable as
Wyant's beliefs may be, his expression of those beliefs is not
separately punishable.
     This example reflects another difference between the two
statutes. Under the Wisconsin statute the defendant's motive
in selecting the victim is a factor the judge may consider
during sentencing. In Mitchell, the United States Supreme
Court emphasized that a defendant's motive has traditionally
been a factor considered during the penalty phase of the
prosecution. 

 508 U.S. at      , 

, 

. As discussed at length by Justice Herbert R.
Brown in Wyant I, motive is not traditionally a factor in the
guilt phase of a prosecution. 

,

. Instead, it is the defendant's intent
to commit the act which is traditionally an element of the
offense. However, R.C. 2927.12 makes the defendant's motive --
his or her thoughts and beliefs -- an element of the offense.
The Wisconsin statute, on the other hand, focuses on the
defendant's intent and conduct. Since the Ohio statute
directly penalizes biased motive, rather than the conduct of
intentionally selecting a victim because of a biased belief,
the Ohio statute violates both Section 11, Article I of the
Ohio Constitution and the First Amendment to the United States
Constitution.
                               II
     Whether or not the Mitchell decision dictates that R.C.
2927.12 be held constitutional under the First Amendment, I
believe that it is unconstitutional under Section 11, Article I
of the Ohio Constitution.2 As we said in Wyant I, "the
Constitution of Ohio is even more specific [than the First
Amendment]; it guarantees to every citizen freedom to 'speak,
write and publish his sentiments on all subjects.'" (Emphasis
added.) 

, 

. Unlike
the First Amendment, Section 11, Article I contains not only a
negative clause ("no law shall be passed") but also an
affirmative clause guaranteeing freedom of speech to all Ohio
citizens. It is a basic rule of constitutional construction
that "the whole section should be construed together, and
effect given to every part and sentence. …" Froelich v.
Cleveland (1919), 

, 

, paragraph one
of the syllabus. Therefore, we must give effect to the
affirmative language in Section 11, Article I which is not
included in the First Amendment.3 This language constitutes a
"promise to affirmatively protect the right" of free speech.
Ferner v. Toledo-Lucas Cty. Convention & Visitors Bur., Inc.
(1992), 

, 610 N.E..2d 1158, 1162.
     The historical context within which the Ohio Constitution
was written also supports a reading which is more expansive
than the First Amendment.4 Early state constitutions were
often based on constitutions from other states, not on the
federal Bill of Rights. For example, the free speech provision
of the 1802 Ohio Constitution appears to have been based on the
1790 Pennsylvania Constitution.5 Reliance on another state's
constitutional language reflects the different purposes to be
served by the federal Bill of Rights and the state
constitutions. To obtain ratification of the United States
Constitution, the federal Bill of Rights was added as a curb on
the broad powers granted to the national government. The
states were seen as protectors of their citizens' individual
civil rights -- rights contained in the state constitutions.
The affirmative clause of Section 11, Article I reflects this
role of the state in affirmatively protecting its citizens'
right to free speech. Because the Ohio Constitution provides a
more expansive protection for freedom of speech than does the
United States Constitution, nothing in the Mitchell decision
alters our conclusion in Wyant I that R.C. 2927.12 violates the
Ohio Constitution.
     The majority's disposition of this appeal is also
inadequate because reliance on Mitchell addresses only the free
speech challenge to the statute. The defendants in this case
also raised challenges on the grounds of vagueness, equal
protection, due process and overbreadth. In our unanimous
opinion in Wyant I we said that "[t]hese arguments may have
merit, especially in view of the concurring opinion by Justice
White in R.A.V. v. St. 

 505 U.S. at     , 

, 

." (Emphasis added.) Wyant I, 

, 

. We merely declined
to resolve them because our holding in Wyant I made it
unnecessary.
     It can, perhaps, be argued that reliance on Mitchell
disposes of the overbreadth challenge. In no way, however, can
it be argued that Mitchell disposes of the vagueness and equal
protection arguments, because the United States Supreme Court
specifically declined to address those arguments. 

 508 U.S. at     , 

, 

,
at fn. 2. The majority's reversal of our holding in Wyant I
concerning the free speech challenge to R.C. 2927.12 now makes
it essential that we address these other constitutional
challenges to the statute. This is especially true since the
lower court opinions declaring R.C. 2927.12 unconstitutional
relied primarily on the vagueness challenge.6 For example,
Judge Kessler, the trial judge in the May case, found that the
phrase "'by reason of' as used in Ohio Revised Code {2927.12
describes no statutorily cognizable mental state, as required
by Ohio Revised Code {2901.21 for an element of the offense,
and is, therefore, impermissibly constitutionally vague under
Section 16, Article I of the Ohio Constitution and the
Fourteenth Amendment to the United States Constitution." He
also found the statute vague "because the language of the
statute does not sufficiently specify the relationship of the
race, et cetera of the other 'person or group of persons' to
the actor or victim." State v. May (May 15, 1990), Montgomery
C.P. No. 89-CR-4687/2, unreported.
     If the majority is construing the "by reason of" language
of R.C. 2927.12 to mean that the defendant intentionally
selected his or her victim because of race, color, religion or
national origin, it has an obligation to say so. The majority
also has an obligation to inform trial judges that they should
formulate jury instructions to explain this meaning to juries
in R.C. 2927.12 prosecutions.
     At the very least, Wyant is entitled to have his
conviction vacated and remanded for a new trial, which would
include such jury instructions. The jury received no
instructions regarding the meaning of this language in R.C.
2927.12. Otherwise, there is no way to assure that he was
convicted based on his conduct, not based on his beliefs.
                              III
     For the above reasons, I would reaffirm our decision in
Wyant I, and hold that R.C. 2927.12 violates the First
Amendment to the United States Constitution and also violates,
independently, Section 11, Article I of the Ohio Constitution.
     Pfeifer, J., concurs.
     A.W. Sweeney, J., concurs in Part II of the foregoing
dissenting opinion, but does not participate in State v. Van
Gundy, case Nos. 91-1211 and 91-1589.

FOOTNOTE:
     1 The Wisconsin statute analyzed in Wisconsin v.

 provided in part:
     "(1) If a person does all of the following, the penalties
for the underlying crime are increased as provided in sub. (2):
     "(a) Commits a crime under chs. 939 to 948.
     "(b) Intentionally selects the person against whom the
crime under par. (a) is committed or selects the property which
is damaged or otherwise affected by the crime under par. (a)
because of the race, religion, color, disability, sexual
orientation, national origin or ancestry of that person or the
owner or occupant of that property." Former Wis. Stat. Section
939.645.
     2 We recently held that the Ohio Constitution is an
independent source of protection of civil liberties:
     "The Ohio Constitution is a document of independent
force. In the areas of individual rights and civil liberties,
the United States Constitution, where applicable to the states,
provides a floor below which state court decisions may not
fall. As long as state courts provide at least as much
protection as the United States Supreme Court has provided in
its interpretation of the federal Bill of Rights, state courts
are unrestricted in according greater civil liberties and
protections to individuals and groups." Arnold v. Cleveland
(1993), 

, 

, paragraph one of the
syllabus.
     3 Other state supreme courts have interpreted an
affirmative clause in their state constitutions to provide more
expansive protection of free speech rights, including
California, Colorado and New Jersey. Robins v. PruneYard
Shopping Ctr. (1979), 

, 

, 

, affirmed sub nom. PruneYard Shopping Ctr. v. Robins
(1980), 

, 

, 

; Bock v.
Westminster Mall Co. (Colo. 1991), 

; State v. Schmid
(1980), 

, appeal dismissed sub nom.
Princeton Univ. v. Schmid (1982), 

, 

,

.
     4 In the 1802 Ohio Constitution, the affirmative clause
appeared in Section 6, Article VIII.
     5 Baldwin's Ohio Revised Code Annotated (1990), Editor's
Comment to Section 11, Article I, Ohio Constitution.
     6 The trial courts dismissed the charges of ethnic
intimidation against all appellants except Wyant based on the
grounds that R.C. 2927.12 is unconstitutional.