dissenting. The majority opinion concludes that R.C. 1333.92 is constitutional when read in conjunction with R.C. 1333.99(H). Because pyramid sales schemes can be vicious and dupe many unsuspecting victims, I empathize with the desire to prohibit this activity. However, I write separately to express my concern about the statutory language in the relevant section of the Ohio Pyramid Sales Act.
R.C. 1333.92 merely states that:
“No person shall propose, plan, prepare, or operate a pyramid sales plan or program.”
The language of this section is markedly different from the Minnesota statute relied upon by the majority. Minn. St. 325.79, subd. 2(2)(a) forbids any person “to operate or attempt to operate” a pyramid sales plan. Clearly, the prohibited conduct in Minnesota is limited to operating a plan. However, three of the four operative words in R.C. 1333.92 are “propose,” “plan” and “prepare.” These concern activities preliminary to implementing acts to operate such a scheme. Therefore, a person could be guilty of a violation without any overt act or intent to implement a pyramid sales plan. This could mean that many persons who fantasize easy ways to get rich quick could be found guilty of violating this section. Moreover, the broad reach of the terms “propose,” “plan” and “prepare” is not limited by a requirement of mens rea. The section does not specify any requirement of scienter.
The majority opinion recognizes that preliminary thinking and planning should not be prosecuted. It states that “[b]efore an indictment under the involved sections of the Pyramid Sales Act can result in a conviction, there must be some movement or act toward the execution of a pyramid sales plan or scheme.”
Appellees argue that this section is unconstitutionally overbroad because it may be violated by innocent thoughts and conduct. In State v. Phipps (1979), 58 Ohio St. 2d 271 [12 O.O.3d 273], this court discussed the standard for determining whether a statute is overbroad as given in Grayned v. Rockford (1972), 408 U.S. 104. The United States Supreme Court stated, at 114, that “[a] clear and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.” Following the rationale in Phipps, unless R.C. 1333.92, on its face, proscribes only unprotected conduct or can be narrowly construed to do so, it must be struck down as being unconstitutionally overbroad.
*12When the court of appeals construed the statute, it found that a person could be guilty of a violation when he merely contemplated a money-making scheme, in the privacy of his home, but had no intent of pursuing it or involving anyone else. Similarly, the appellate court concluded that persons who discuss the possibilities of a pyramid sales plan might be found guilty even though they had no intent to implement it.
In construing the language of a statute, to sustain its validity, “it must be recognized that a court, in interpreting a legislative enactment, may not simply rewrite it * * *." Seeley v. Expert, Inc. (1971), 26 Ohio St. 2d 61, 71 [55 O.O.2d 120]. See, also, Crane v. Cedar Rapids & I.C. Ry. Co. (1969), 395 U.S. 164, 167. In State v. Young (1980), 62 Ohio St. 2d 370 [16 O.O.3d 416], we rejected this approach in dealing with R.C. 2923.04. We stated, at 382, that “[t]he objective of the legislation cannot be questioned, but its sweeping reach and its imprecise terminology are incompatible with due process requirements. These constitutional considerations may not be dismissed merely because there is a laudatory legislative end sought to be achieved.” Similarly, although R.C. 1333.92 has a worthy purpose, its sweep is too broad. A limiting construction necessary to save this section would require major rewriting, a task we cannot perform.
Therefore, I conclude that R.C. 1333.92 was inartfully drafted and is unconstitutionally overbroad. For these reasons, I dissent and would affirm the court of appeals.
Sweeney, J., concurs in the foregoing dissenting opinion.