“Are we to value speed over certainly? Of all cases that cry out for certainty, it is cases that result in the extinguishing of a human life.”
Chief Justice O’Connor, majority opinion
On December 21, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Noling, 2016-Ohio-8252. In an opinion written by Chief Justice O’Connor, the court unanimously agreed that R.C. 2953.73(E)(1), a section of the postconviction DNA testing statute, was unconstitutional, but split 4-3 on how to fix the offending portion of the statute. The case was argued May 31, 2016.
In April of 1990, Tyrone Noling was convicted by a jury of the aggravated murders of Bearnhardt and Cora Hartig in Portage County. He was sentenced to death. The Supreme Court of Ohio affirmed the conviction and death sentence in 2002. (Noling I).
Noling made many applications for postconviction relief. This particular appeal arises from the denial by the trial court of Noling’s 2013 amended application for postconviction DNA testing. Noling appealed the denial to both the 11th District Court of Appeals and to the Supreme Court of Ohio. The court of appeals dismissed the appeal for lack of jurisdiction. The Supreme Court of Ohio accepted the case on discretionary review about the disparity in postconviction treatment of capital and noncapital defendants.
Read an analysis of the argument in the case here.
The key statutes in this case read as follows:
R.C.2953.73(E)(1) (“If the offender was sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing, the offender may seek leave of the supreme court to appeal the rejection to the supreme court. Courts of appeals do not have jurisdiction to review any rejection if the offender was sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing.”)
R.C.2953.73(E)(2) (“If the offender was not sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing, the rejection is a final appealable order, and the offender may appeal it to the court of appeals of the district in which is located that court of common pleas.”)
Other Key Statutes and Precedent
Fourteenth Amendment to the U.S. Constitution, Section 1 (No state shall […] deny to any person within its jurisdiction the equal protection of the laws.”)
Ohio Constitution, Article I, Section 2 (All political power is inherent in the people. Government is instituted for their equal protection and benefit.)
Ohio Constitution, Article IV, Section 2(B)(2)(c) (The Supreme Court shall have original jurisdiction in […] cases in which the death penalty has been imposed.)
R.C. 2953.02 (In a capital case in which a sentence of death is imposed for an offense committed…the judgment or final order may be appealed from the trial court directly to the supreme court as a matter of right.)
R.C. 2953.72(A)(8) (The court of common pleas has the sole discretion subject to an appeal as described in this division to determine whether an offender is an eligible offender and whether an eligible offender’s application for DNA testing satisfies the acceptance criteria described in division (A)(4) of this section and whether the application should be accepted or rejected [and] if the court of common pleas rejects an eligible offender’s application, the offender may seek leave of the supreme court to appeal the rejection to that court if the offender was sentenced to death for the offense for which the offender is requesting the DNA testing and, if the offender was not sentenced to death for that offense, may appeal the rejection to the court of appeals.)
R.C. 2953.72(A)(9) (An offender who participates in any phase of the mechanism contained in [R.C. 2953.71 to 2953.81], including, but not limited to, applying for DNA testing and being rejected, having an application for DNA testing accepted and not receiving the test, or having DNA testing conducted and receiving unfavorable results, does not gain as a result of the participation any constitutional right to challenge, or, except as provided in division (A)(8) of this section, any right to any review or appeal of, the manner in which those provisions are carried out.)
Ake v. Oklahoma, 470 U.S. 68 (1985) (Burger, C.J., concurring) (the finality of the death sentence imposed warrants protections that may or may not be required in other cases.)
State v. Steffen, 70 Ohio St.3d 399, 639 N.E.2d 67 (1994) (A postconviction proceeding is not an appeal of a criminal conviction, but, rather, a collateral civil attack on the judgment. It is a statutory right, not a constitutional right.)
State v. Smith, 80 Ohio St. 3d 89, 684 N.E.2d 668 (1997) (Upholding the constitutionality of direct appeal of capital cases from the trial court to the Supreme Court of Ohio. No violation of due process or equal protection in this statutory scheme.)
State v. Davis 131 Ohio St.3d 1, 2011Ohio-5028, 959 N.E.2d 516 (Intermediate appellate courts have jurisdiction to review postconviction matters in death penalty cases.)
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, abrogated in part on other grounds by Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009) (severing unconstitutional parts of Ohio’s felony-sentencing structure.)
Murray v. Giarratano, 492 U.S. 1 (1989) (collateral proceedings are not constitutionally required as an adjunct to the state criminal proceedings.)
Geiger v. Geiger, 117 Ohio St. 451, 466, 160 N.E. 28 (1927) (articulating Ohio’s three-part test to determine whether an invalid portion of a statute can be severed or the entire law must be struck down.)
State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156 (under the Geiger test for severance, a portion of a statute can be excised only when the answer to the first question is yes and the answers to the second and third questions are no.)
State ex rel. Doersam v. Indus. Comm., 45 Ohio St.3d 115, 543 N.E.2d 1169 (1989) (holding that an amendment to R.C. 4123.59(B) violated equal protection by creating two classes of claimants who may receive workers’ compensation death benefits and thus finding that the appropriate remedy was to sever the discriminatory provision.)
State ex rel. Maurer v. Sheward, 71 Ohio St.3d 513, 644 N.E.2d 369 (1994) (finding that by excising all offending references to “commutations” and “reprieve,” the statute at issue could still be read and stand by itself, indicating that severance was an appropriate remedy under Geiger).
State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764 (“Noling II”) (R.C. 2953.73(E)(1) is constitutional in conferring appellate jurisdiction upon Supreme Court from a trial court’s denial of postconviction DNA testing in a case in which the death penalty was imposed. Ruling not based on equal protection grounds.)
Here is what this case is about.
R.C.2953.73(E)(2) provides mandatory review to noncapital defendants by the intermediate appellate courts for postconviction denial of DNA testing. The intermediate courts of appeals have no jurisdiction to hear such appeals for capital defendants.
R.C.2953.73(E)(1), provides only discretionary review by the Supreme Court for the postconviction denial of DNA testing for capital offenders.
Noling argued that (E)(1) is unconstitutional on equal protection and due process grounds, because noncapital defendants get a mandatory review of the denial of DNA testing, while capital defendants do not (albeit at different levels of the appellate process). In the unanimous part of the opinion, the court agreed that the statute violated equal protection, so the court did not consider Noling’s due process challenge. But the court split sharply, 4-3, on the appropriate remedy here. The majority—Chief Justice O’Connor, and Justices Pfeifer and Lanzinger, plus Judge Carla Moore of the Ninth Appellate District, sitting for the recusing Justice O’Neill–struck only the offending portions of the statute, leaving the rest to stand. Specifically, they would remove the phrase “seek leave of the supreme court to” from the statute. The dissent, written by Justice O’Donnell and joined by Justices Kennedy and French, would strike the entire statute.
A Little New Judicial Federalism Moment
Recently, in State v. Mole, Slip Opinion No. 2016-Ohio-5124, the court held that Ohio’s Equal Protection Clause provides greater or equal protection than does the 14th amendment to the U.S. Constitution, while in 1999, in Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 60, 717 N.E.2d 286 (1999) the court found that the two clauses should be construed and analyzed identically. The court makes no attempt to reconcile these apparent contradictory holdings, but simply announces that it was citing both clauses throughout the opinion in this case.
Standard of Review
The court rejected strict and intermediate scrutiny, and decided that rational basis review applies. Under rational basis review, the Equal Protection Clause is satisfied if there is a plausible policy reason for the classification. A statute can be struck down only if the legislature’s action lacked all rational relation to the legitimate state interest.
The prosecution argued that the state has a legitimate interest in ensuring that final judgments are expeditiously enforced. But the court demonstrated, comparing actual number of days allowed in a discretionary appeal with an appeal of right, that permitting only a discretionary appeal is not rationally related to that purpose.
While noting that it was not compelled to do so, the majority also rejected all the amicus Attorney General’s rational basis arguments. If you want to get down in the weeds as to why, read paragraphs 25-31 of the majority opinion.
Ultimately, the court concludes that there is no legitimate purpose in a two track appellate process that differentiates between capital and noncapital offenders, and thus held that R.C. 2953.73(E)(1) was unconstitutional in violation of both state and federal equal protection principles.
Eighth Amendment Challenge
The court rejected this challenge, noting that the U.S. Supreme Court has held that the Eighth Amendment ban on cruel and unusual punishment isn’t violated even if a capital offender has no opportunity for postconviction relief. Thus a statute that does provide postconviction relief, even without an effective opportunity for appeal, is not arbitrary and egregious.
Remedy: The Geiger Test
This is where the majority and dissent really part company. Both agree that Ohio law establishes a three-part test to determine whether the offending part of a statute can be severed, or whether the whole thing must go. That test is set forth in Geiger v. Geiger:
1) Are the constitutional and the unconstitutional parts capable of separation so that each may be read and may stand by itself? (2) Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out? (3) Is the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part, and to give effect to the former only?
Further, both the majority and dissent agree that the Geiger test can be satisfied if the answer to the first question is yes, and the answer to the second and third is no.
Geiger Question 1. Are the constitutional and the unconstitutional parts capable of separation so that each may be read and may stand by itself?
Here is the statute:
“If the offender was sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing, the offender may seek leave of the supreme court to appeal the rejection to the supreme court. Courts of appeals do not have jurisdiction to review any rejection if the offender was sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing.”
Here is the proposed majority solution: removing the phrase “seek leave of the supreme court to.” That would leave the statute permissibly reading as “If the offender was sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing, the offender may appeal the rejection to the supreme court.”
Statute saved. Remaining parts totally comprehensible.
Geiger Question 2: Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out?
The purpose of the statute is to set forth the procedure for postconviction DNA testing, and the purpose of the specific section at issue is to describe appellate rights. The court notes that the right to an appeal was very important to the legislature in that the bill originally introduced contained no provision for appeal, but when voted out of conference, and as later enacted, a right to appeal was included. The majority notes that the severance remedy modifies the appellate process for a very limited number of eligible offenders, and in no way affects the statute’s overall goal of setting forth a scheme for postconviction DNA testing or the goal of providing limited appeals for offenders.
Geiger Question 3: Is the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part, and to give effect to the former only?
Majority: No. It didn’t add any words or terms.
The court also severed the same language- “seek leave of the supreme court to”-from R.C. 2953.72(A)(8), the requirements an offender must acknowledge and submit on a form provided by the attorney general along with the offender’s application for DNA testing.
By severing the offending language in accordance with Geiger, the statute is saved, because now both capital and noncapital offenders have an appeal of right to an appellate review of the denial of an application for DNA testing.
The rest of the majority opinion is spent refuting the dissent’s points that its severance remedy improperly rewrites the statute, is contrary to the court’s previous use of the severance remedy, and is nasty judicial activism.
The right to sever the unconstitutional part of a statute does not give the court license to rewrite it selectively, changing the meaning of what the legislature passed. That’s what the majority did here. The Geiger test cannot be satisfied.
The majority can only speculate that the legislature would have provided for an appeal of right to the Supreme Court rather than an appeal of right to the intermediate courts of appeals in this circumstance, as it has done for all other offenders seeking postconviction relief in this situation.
The dissenters would strike all of R.C. 2953.73 (E), and the related forms in R.C. 2953.72(A)(8) and (9) from the statute. To them, that would make it clear that any offender denied DNA testing may bring a direct appeal to the court of appeals.
What Happens to Noling Now?
His appeal was sua sponte converted into an appeal of right, and he is to file a brief addressing the merits of the denial of his most recent application for DNA testing.
Had the dissenters prevailed, he would have done the same thing, but in the 11th district court of appeals.
Here’s what I wrote after the argument:
“I think a majority of the justices are ready to declare R.C. 2953.73 (E)(1) unconstitutional on equal protection grounds. Justices O’Donnell and French seem to be already there, as Justice O’Donnell wrote in the dissent in Noling II, in which Justice French joined. The votes for the appropriate remedy is less clear.
“Initially, Ms. Wood argued that the remedy she sought in this case would be to remove the portion of the statute that permits only discretionary review to the Supreme Court to capital defendants, and remand the case to the 11th district court of appeals for the individualized merit review which is provided under the statute to all noncapital defendants. That is also what Justices O’Donnell and French thought should be the remedy in the dissent in Noling II, because the intermediate appeals courts are for error correction, and the supreme court is not, so she should have both of their votes on this. But R.C.2953.73(E)(1) expressly states that courts of appeals have no jurisdiction to review denial of testing for capital defendants, and I doubt that there are enough votes to strike that, or the entirety of the statute.
“The more likely remedy seems to be that which was floated by Justice Lanzinger (author of Noling II) and Chief Justice O’Connor—which would simply be to excise the words “seek leave of the Supreme Court to” in R.C.2953.73(E)(1).
“Of course finality is important. But isn’t not being wrong in a death penalty case even more important?”
As the majority notes, this situation is very uncommon, observing that in the nearly 13 years since the law has been in effect, only three capital offenders have sought review in the Supreme Court of Ohio.
The University of Cincinnati College of Law’s Ohio Innocence Project, meanwhile, continues to work for Noling’s exoneration. If interested, watch this video: