Springdale v. Hubbard , 52 Ohio App. 2d 255 ( 1977 )

In my judgment, both assignments of error are well taken. The ordinance is unconstitutionally vague and overbroad, and the complaint should be dismissed because it did not allege an offense, having omitted an essential element — "fighting words."

The procedural posture of this case is such that we can examine only the facts alleged in the complaint: that the appellant recklessly caused annoyance to another by making an offensively coarse utterance. Crim. R. 11(B)(2) states that a plea of no contest is an admission of the facts alleged in the complaint, and nothing more. The criminal rule supplants R. C.2937.07, and thus eliminates those provisions of the statute which state that the judge may make a finding of guilty or not guilty from "the explanation of circumstances."

This conclusion — that a plea of no contest no longer permits an explanation of the circumstances applicable to the question of guilt of the charged offense or any lesser offense — is grounded on my opinion (not shared by my brothers) that in setting forth what pleas may be made, how they are made, what the effect of pleas of guilty or no contest is and what procedures shall be used in accepting pleas of guilty or no contest, the criminal rule governs "practice and procedure" and does not abridge, enlarge or modify any substantive right. These provisions state no more than how an accused person may assert his rights and defenses; they do not touch the defendant's rights and defenses themselves. For instance, if a defendant claims that he is not guilty of the charge, or that if he is guilty of any violation it is a lesser offense, he pleads not guilty and raises all issues in the case. If he wants to limit the issues, he can stipulate the undisputed evidence and present only the controverted issue for determination. The "right" to have the judge determine guilt or innocence from somebody's explanation of the circumstances is not of substance. It is procedural. Compare Krause Admr. v. State (1972), 31 Ohio St.2d 132, at 145.

Crim. R. 11 made other significant changes in procedure. The plea of no contest was extended to felony cases, the plea of not guilty by reason of insanity was extended to misdemeanor cases, and pleas of former judgment and of once in jeopardy were abolished. These issues are now raised by pretrial motions under Criminal Rule 12(B)(2).

Under the rule, a plea of no contest has several purposes: to contest the sufficiency of the underlying law or the charge or both (as in the instant case), and to preserve the defendant's claims of error in the overruling of pretrial motions (such as, motions to suppress identification, confessions or physical evidence).

Standing by itself, the language of the statute ("offensively coarse utterance") is vague and overbroad under a line of decisions by the United States Supreme Court. Gooding v.Wilson (1972), 405 U.S. 518. Lewis v. City of New Orleans (1974), 415 U.S. 130. The provisions used in this complaint are not limited to "fighting words" by the express terms of the legislative body. Other provisions of the ordinance are so limited; for instance, under subdivision (3), insulting, taunting or challenging another person is a violation if done "under circumstances in which such conduct is likely to provoke a violent response." But this limitation is not found in division (2) of the ordinance under which the instant charge was made. The courts cannot add to a statute that which the legislature has obviously omitted. See State, ex rel. Corrigan, v. Court of Common Pleas (1976), 45 Ohio St.2d 187, in which the Supreme Court held that a reference in connection with shock probation to "R. C. 2951.03 to 2951.09" did not include R. C.2951.02, thus making it necessary for the legislature subsequently to adopt Amended House Bill 837 specifically including R. C. 2951.02 in the reference.

Cincinnati v. Karlan (1974), 39 Ohio St.2d 107 is not, in my judgment, controlling. The gloss furnished by that case to the old Cincinnati ordinance cannot be extended so as to save every subsequent enactment against disorderly conduct. I do not read that decision as so broad and pervasive that it adds the element of "fighting words" to the Springdale ordinance. Further, the new ordinance is a new definition of prohibited activity, entirely different in structure, design and language. Courts should be bound by the clear meaning of the language used by the legislature.

City of Cincinnati v. McElfresh, unreported, Court of Appeals for the First District, No. C-75122, decided March 22, 1976, is distinguishable from the instant case, in that there the court had before it not only the words used by the defendant, but also proof as to the provocative and explosive circumstances in which they were uttered, thus supporting the court's conclusion that the utterance constituted fighting words. In the instant case, because the plea of no contest admits no more than the facts alleged in the complaint, the circumstances in which the words were spoken were not before the court on the question of guilt, and the court should have limited itself to the question of whether charging "offensively coarse utterance," and no more, constituted a constitutional charge.

Under the law of the land, it is not a constitutional charge.

If McElfresh cannot be distinguished on this ground, my interpretation of the decisions of both the Ohio and United States Supreme Courts constrains me to register herewith my dissent from that case.

The complaint does not state an offense, the essential element of an explosive incident in which the offensively coarse utterance became "fighting words" being absent.

I neither condone nor approve the language used by this appellant. Both the ordinance and the complaint were overbroad, and therefore, I have not reached the question of whether the language appellant used, in whatever the circumstances may have been, was protected speech under the First and Fourteenth Amendments. The Supreme Court of the United States has extended constitutional protection to speech which may be repulsive and offensive to a great many people, even a majority of citizens. Their purpose has been to retain for the American people one of the pillars of our structure of individual freedoms. As stated by Justice Herbert in Karlan, supra, at 109-110:

"A majority of the United States Supreme Court has said that no matter how rude, abusive, offensive, derisive, vulgar, insulting, crude, profane or opprobrious spoken words may seem to be, their utterance may not be made a crime unless they are fighting words, as defined by that tribunal. Furthermore, the court has stated that those descriptive words in and of themselves are constitutionally overbroad and must be rendered unsusceptible of application to protected speech by appropriate judicial decision."