Merit Decision: A Surprising Application of the New Judicial Federalism. State v. Mole.

On July 28, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Mole, Slip Opinion No. 2016-Ohio-5124. In a 4-3 opinion authored by Chief Justice O’Connor, joined in full by Justices Pfeifer and O’Neill, the court struck down R.C. 2907.03(A)(13) on its face, on equal protection grounds. The statute, a subsection of the sexual battery law, prohibits sexual conduct when one person is a minor and the offender is a peace officer and more than two years older than the minor. Peace officer is defined at R.C. 2935.01(B) and includes not just police officers, but many other law enforcement personnel. Justices Kennedy and French each wrote a dissent. Justice O’Donnell joined both dissents. This case has been pending for two years, having been argued on July 9, 2014. Being under submission that long means great difficulty getting four votes. Justice Lanzinger provided the Chief with that fourth vote with a curious, hasty concurrence in judgment only.

The blog did not preview this case, but it is certainly worth analyzing. I’m emphasizing the new judicial federalism aspect of the decision, which has long been an interest of mine.

Case Background

Matthew Mole was a police officer for the city of Waite Hill. He met J.S. through a dating app on his mobile phone. J.S. initiated the contact.  Mole was 35.  J.S. claimed to be 18 and a senior in high school.  J.S. was actually 14.  In December of 2011, the two had oral sex at J.S.’s house at three o’clock in the morning.  J.S.’s mother discovered them and called the police. Mole then learned J.S.’s true age. Mole was arrested. J.S. did not know Mole was a police officer.

Mole was charged with one count of unlawful sexual conduct with a minor pursuant to R.C. 2907.04,  which prohibits sexual conduct with a minor between 13 and 15 when the offender is 18 or older and either knows the other person’s age or is reckless in that regard.  He was also charged with one count of sexual battery pursuant to R.C. 2907.03(A)(13).  Mole resigned his position after he was charged.

Before trial, Mole asked the trial court to declare R.C. 2907.03(A)(13) unconstitutional. The gravamen of his argument was that the absence of a mens rea in the statute and the failure to connect a defendant’s occupational status with the prohibited sexual activity violated due process and equal protection. The trial court declined to strike down the statute.

Mole elected to try the sexual conduct charge to a jury and the sexual battery charge to the bench. The jury deadlocked on the sexual conduct charge and a mistrial was declared.  The state dismissed the indictment on that charge.  But the judge found Mole guilty of sexual battery, sentenced him to two years in prison, and classified him as a Tier III sex offender.

Mole appealed to the Eighth District Court of Appeals. In a split decision written by Judge Larry Jones, Sr., in which Judge Melody Stewart concurred in judgment only, and wrote separately, and Judge Frank Celebrezze dissented, the appeals court found that R.C. 2907.03(A)(13) violated the Equal Protection clauses of the state and federal constitutions, and was unconstitutional on its face. The trial court was ordered to vacate Mole’s conviction and sex offender classification.

Key Constitutional Provisions

U.S. Constitution

The Fourteenth Amendment provides that “[n]o State shall…deny to any person within its jurisdiction the equal protection of the laws.”

Ohio Constitution

Article I Section 2 provides that ‘[a]ll political power is inherent in the people. Government is instituted for their equal protection and benefit…”

Case Holding

The majority in this case found R.C. 2907.03(A)(1) unconstitutional on its face. The court found that the statute violated the Equal Protection Clause of the U.S. and the Ohio Constitution.

Why Unconstitutional?

Short answer: “The sexual conduct at issue here was unrelated to Mole’s professional status.”

The subsection which the court struck down is part of Ohio’s broad sexual battery statute, R.C. 2907.03. The offense of sexual battery was created to prohibit sexual conduct in situations where the offender takes unconscionable advantage of victims in a variety of circumstances. The purpose of the statute is to protect vulnerable individuals. A number of subsections of the statute criminalize conduct by those who use their professional status to take unconscionable advantage of minors and other vulnerable victims—such as teachers, coaches, scout leaders, mental health professionals, prison guards, members of the clergy, and peace officers. But for all the others except peace officers, the crime arises as a result of using one’s professional status to take unconscionable advantage of one’s victims. Peace officers are singled out for different treatment under the statute. They are liable even if they did not use their status as peace officers to identify potential victims and abuse them.  Therein lies the equal protection problem.   At least for the majority.

So, essentially, the majority agreed with Eighth District Appeals Court Judge Melody Stewart’s assessment that “Mole’s position as a police officer had nothing to do with the sexual activity he engaged in with the victim: Mole did not tell the victim he was a police officer and the victim testified that he had no idea that Mole was a police officer. The evil to be prevented by R.C. 2907.03(A)(13), the misuse of police authority to compel or coerce sexual conduct, was simply not present in this case.” In other words, Mole didn’t use his position as a police officer to identify or coerce J.S. in this sexual encounter. J.S. had no idea Mole was a cop. Yet under this statute, this makes no difference, although it would make a difference for others in positions of authority under other parts of the statute. “Peace officers are liable under the statute even if they did not use their status as police officers to identify potential victims and abuse them,” wrote O’Connor.

What’s Radical About the Holding?

What is radical is the court’s finding that the Equal Protection Clause of the Ohio Constitution provides greater protection here than the federal constitutional analogue. That is a definite departure from past holdings.

What the Court Has Said About Equal Protection in the Past

In 1999, in Am. Assn of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55 (1999), the court held that “the federal and Ohio Equal Protection Clauses are to be construed and analyzed identically.” The majority departs from this position in this case, and also departs from the appeals court on this point. Even though the Eighth District also struck the statute down as unconstitutional, opinion author Jones wrote, “both equal-protection provisions are functionally equivalent and require the same analysis, “ citing Eppley v. Tri-Valley Local School Dist. Bd. of Edn.,  2009-Ohio-1970, ¶ 11. So the high court majority, while affirming the appeals court, clearly differs from it on this key point.

As Justice Kennedy points out, Am. Assn of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ. isn’t the only case to find the clauses equivalent.  In ¶ 93 of her dissent, she cites several others. In fact, she claims the court has found the clauses to be equivalent since 1895, citing State ex rel. Schwartz v. Ferris, 53 Ohio St. 314 (1895).

 What’s This New Judicial Federalism Stuff?

This has long been a particular interest of mine. To get up to speed on this, stop right now and read this In Sharper Focus post. In short, under the new judicial federalism, a state is free to use its own constitution to find greater protection for individual liberties than exist under the U.S. Constitution. Ohio first joined this movement in 1993 in Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163, declaring the Ohio Constitution to be a document of independent force.

New judicial federalism is a very important doctrine for another reason. If a decision is truly based on independent state grounds, then it cannot be reviewed by the U.S. Supreme Court. BUT just saying that it is so doesn’t make it so. The U.S. Supreme Court has to be convinced a state court decision is really based on independent state grounds, and is not just saying that to defeat federal jurisdiction.

Essentially, there are two broad approaches to the interpretation of state constitutional provisions that are analogous to federal provisions. One is the lockstep approach. There, a state court does not deviate in any way from U.S. Supreme Court analysis and precedent. Up until this case, that was the approach the Supreme Court of Ohio took in equal protection jurisprudence. The second is to use a separate, independent state constitutional analysis to explain a finding of greater protections.

Then there is the approach that I’ve heard called something like “the magic wand approach.” That is when a state supreme court simply announces, with no textual or factual analysis or reasoning, that one of its state constitutional provisions provides greater protection than its federal analog. I think that is what happened in this case. When this happens, the U.S. Supreme Court would still be free to assert federal jurisdiction and reject such an analysis, should the appellant seek federal review. That is what happened in a seminal case in this area, Michigan v. Long, 463 U.S. 1032 (1983), in which the U.S. Supreme Court rejected the Michigan Supreme Court’s reliance on the Michigan Constitution to provide greater protection in a search-and-seizure context than existed under federal law, because the adequacy of the independent state-law grounds was not apparent from the opinion. To the contrary, the U.S. Supreme Court found that despite its stated reliance on its own constitution, the Michigan Supreme Court had based its decision mostly on federal law.

The same thing happened to the Supreme Court of Ohio in Ohio v. Robinette, 519 U.S.33 (1996). Like Michigan, the Supreme Court of Ohio had found greater protection under the Ohio Constitution in a search-and-seizure context than existed under federal law. But upon review, the U.S. Supreme Court found that Ohio had not really based its holding on independent state grounds, and had also misinterpreted what federal law required. Opinion author Chief Justice William Rehnquist, wrote, “although the opinion below mentions Art. I, § 14, of the Ohio Constitution in passing (a section which reads identically to the Fourth Amendment), the opinion clearly relies on federal law nevertheless.” (To read more about the Robinette trilogy, see in Sharper Focus, supra).

Lesson Learned?

This is ¶ 23 of the majority opinion in Mole’s case:

“…[w]e turn to the question before us, which arises in the realm of equal-protection principles under both the federal and Ohio Constitutions. As explained below, we hold that R.C. 2907.03(A)(13) is violative of both. In so holding, however, we make clear that even if we have erred in our understanding of the federal Constitution’s Equal Protection Clause, we find that the guarantees of equal protection in the Ohio Constitution independently forbid the disparate treatment of peace officers through a legislative scheme that criminalizes their sexual conduct while removing virtually all of their due-process protections, such that an officer’s conduct can constitute a criminal offense even when that conduct is not found to be illegal by a jury of the officer’s peers.” (emphasis mine)

I read this paragraph as saying “we heard you in Robinette, and we won’t make that same mistake.” Indeed, Chief Justice O’Connor in this case wrote, “Federal opinions do not control our independent analyses in interpreting the Ohio Constitution, even when we look to federal precedent for guidance.”

But what the majority apparently didn’t hear or couldn’t put together, is that there really has to be fully developed independent state grounds.  Just saying something is so-waving the magic wand over it– doesn’t make it so.  That is the point of both Justices Kennedy and French point in dissent.

Of course, the U.S. Supreme Court does not agree to review every case in which a state supreme court uses its own constitution to find greater protections than exist under the federal floor.  Still, it would be interesting to see what would happen if the state tried to take this case up. As Justice Sandra Day O’Connor wrote in Michigan v. Long, “It is, of course, incumbent upon this Court…to ascertain for itself…whether the asserted non-federal ground independently and adequately supports the judgment.”

On to Rational Basis Review

All the justices agree that under either a federal or state constitutional analysis, rational basis is the standard of review in this case, which requires the statute to be upheld if it is rationally related to a legitimate governmental purpose.  Justice French, though, accuses the majority of applying  “an elevated level of judicial scrutiny.”

State Interests Involved

The state interests asserted are strong ones- holding peace officers to a higher standard to ensure integrity and maintain the public trust, and to protect minors. All of the justices agree with the importance and legitimacy of these interests. But the majority finds that the wording of R.C. 2907.03(A)(13) does not further those interests.

While agreeing that a peace officer occupies a unique position of public trust and authority, the majority disagrees that a person’s status alone justifies the imposition of different sexual-conduct standards in a circumstance in which that status is irrelevant to what happened, as in this case. In other words, Mole’s status as a police officer had no bearing on what happened in this case. While such conduct could certainly legitimately be used to terminate a peace officer’s employment, it doesn’t justify differential treatment under the criminal law when there is no connection between the criminalized conduct and the job.  And the same is true with the rationale for protecting minors. The other sections of the sexual battery statute require the state to prove that the accused used trickery or occupied a position of authority in order criminalize the sexual conduct under the statute.  Not so for peace officers. “Peace officers are liable under the statute even if they did not use their status as peace officers to identify potential victims and abuse them,” O’Connor wrote. Any classifications must not “subject individuals to an arbitrary exercise of power… “[t]he government cannot punish a class of professionals without making a connection between the classification and the prohibited act,” wrote O’Connor, also noting that the jury’s failure to convict Mole of unlawful sexual conduct with a minor made it clear that but for his status as a peace officer, Mole would not have been subject to criminal liability.


R.C. 2907.03(A)(13) was found unconstitutional on its face.

Justice Lanzinger’s Separate Concurrence

Other than quoting from Justice Brennan’s seminal law review article on the importance of independent state constitutional interpretation, Justice Lanzinger’s entire concurrence is, “based on the analysis that the Ohio Constitution is a document of independent force, I join the majority in judgment only.” Curious. That’s the syllabus of Arnold v. Cleveland anyway, and really says nothing about the majority’s reasoning in this case.  Maybe this was the only way to break a 3-3 tie?

Justice Kennedy’s Dissent

Justice Kennedy (herself a former police officer) really takes the majority to the woodshed for announcing that the Ohio Equal Protection Clause provides greater protection than the Fourteenth Amendment without any textual or historical analysis for doing so, and for effectively overruling cases that found them to be equivalent without engaging in the three-step analysis required in Westfied Ins. Co. v. Galatis for overruling prior precedent. “It appears that the majority’s interpretation of Ohio’s Equal Protection Clause is not based on its text or history but on the majority’s sense of judicial necessity. However, our constitutional interpretation should be guided exclusively by the language and history of the clause at issue,” wrote Kennedy. To Kennedy, the two clauses afford the same protections, R.C. 2907.03(A)(13) is rationally related to a valid state interest, and is constitutional.

Justice Kennedy also criticizes the majority for finding the statute facially unconstitutional, which requires the challenger to establish that there is no set of circumstances under which the act would be valid. At best, she would find the majority decision might support an as-applied challenge.

Justice French’s Dissent

Justice French also dissented, on two grounds. Like Justice Kennedy, French would find that R.C. 2907.03(A)(13) is rationally related to the legitimate state interest in preserving public confidence in the integrity of law-enforcement officers and in protecting minors. Also like Justice Kennedy, French believes the majority provided no independent analysis for its conclusion that the state equal-protection clause provides greater protection than its federal analogue.

Justice French has been insistent that such any departure from the federal constitutional floor requires a rigorous textual and/or historical analysis. She made the same criticism in dissents in State v. Bode, 2015-Ohio-1519, in which she really took majority opinion author Lanzinger to task for failing to engage in the necessary rigorous analysis to make such a finding, and in State v. Brown, 2015-Ohio-2438, in she suggests the type of analysis that should be done.  In other words, she totally rejects the view that just saying the Ohio Constitution provides greater protection makes it so.

Justice O’Donnell joined both dissents.

Case Syllabus

None, unsurprisingly.

New Judicial Federalism Biggies in the Past

There are a number of cases cited in this opinion in which the Supreme Court of Ohio did depart from federal constitutional interpretation to find greater protections under its own constitution. Paragraphs 13-23 of the majority opinion and paragraphs 78-93 of Justice Kennedy’s dissent review these. Here are the key ones:

Arnold v. Cleveland, 67 Ohio St.3d 35 (1993) (Ohio Constitution is a document of independent force. A state court is free to provide greater protections under its constitution for individual liberties than those provided under the U.S. Constitution. Ohio Constitution provides greater protection than the Second Amendment in ensuring fundamental individual right to bear certain firearms for self-defense.)

Simmons-Harris v. Goff, 86 Ohio St.3d 1 (1999) (Language of Ohio’s Establishment Clause quite different from First Amendment language. No reason to conclude the clauses are co-extensive nor that the court would automatically be tied to U.S. Supreme Court interpretation of federal Establishment Clause.)

Humphrey v. Lane, 89 Ohio St.3d 62 (2000)(Greater protection under Ohio’s Free Exercise Clause than under the federal Constitutional analogue.)

Norwood v. Horney, 2006-Ohio-3799 (greater protection from government appropriation of private property.)

State v. Brown, 2003-Ohio-3931 (Section 14, Article I of the Ohio Constitution provides greater protection than the Fourth Amendment against searches and seizures conducted by members of law enforcement who lack authority to make an arrest.) Accord, State v. Brown,  2015-Ohio-2438.

State v. Bode, 2015-Ohio-1519, (greater protection under Ohio’s Due Course of Law provision for uncounseled juveniles facing the possibility of confinement than exists under the Due Process clause of the U.S. Constitution.)

Concluding Observations

I could certainly buy an as-applied challenge in this case, but am not entirely convinced of a facial challenge. Nor am I sure after reading the majority opinion why the federal Equal Protection clause provides an insufficient ground for its holding.

I also agree with Justices Kennedy and French that the justification for finding greater protection under the Ohio Equal Protection clause than exists under the federal Equal Protection Clause is woefully inadequate. Rigorous textual and or historical analysis is required at a minimum. The Chief should certainly know that-she did an outstanding job of it in authoring Norwood v. Horney. And Justice Andy Douglas did that kind of analysis in Arnold. But this case looks more like “we say it is so and therefore it is so”—what I’ve called the magic wand approach.

As a practice pointer, for many years I have urged lawyers in a variety of contexts to make Ohio constitutional challenges, as well as federal ones.  But I also urge lawyers who do so to help the court out—provide it with the kind of thorough textual and historical analysis lacking in this case.  There are excellent resources out there to aid in that approach. Neither brief in this case provided any such analysis.

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