City of South Euclid v. Richardson

Wright, J.,

dissenting. The city of South Euclid adopted an ordinance aimed at restraining sexual permissiveness. Specifically it outlawed maintaining a brothel for purposes of sexual activity such as group sex. Admittedly, the ordinance is not a model of clarity. However, I think it disingenuous to imply that a reasonable person would not understand terms such as “sexual conduct,” “sexual activity,” or “group sex.” In light of well-established principles of analysis pertaining to vagueness and overbreadth, I must dissent from the majority’s holding that South Euclid’s Ordinance No. 36-86 is unconstitutional.

The void-for-vagueness inquiry turns on two questions. The court of appeals took note of the first, which is whether the ordinance puts a person of ordinary intelligence on notice of what conduct the statute forbids. As we held in State v. Young (1988), 37 Ohio St. 3d 249, 252, 525 N.E. 2d 1363, 1368, “* * * [a]ny term which is not defined by a statute is accorded its common, ordinary meaning. * * *” The meaning of “group sex” is sufficiently clear to a person of ordinary intelligence, as the court of appeals conceded. Moreover, R.C. 2907.01(A) defines “sexual con*153duct” in what I consider sufficiently specific terms to supply the requisite notice.1 It strains credulity to suggest that the Richardsons could not have known the nature of the sexual acts proscribed by the ordinance.

The second question, not addressed by the court of appeals, is whether the alleged vagueness in the ordinance proscribed the actual conduct of the Richardsons. If the vague language pertains only to hypothetical conduct in which the defendants were not alleged to have engaged, the statute is not void as a result. As the United States Supreme Court explained in Broadrick v. Oklahoma (1973), 413 U.S. 601, 608: “* * * [E]ven if the outermost boundaries of * * * [a statute] may be imprecise, any such uncertainty has little relevance here, where * * * [defendants’] conduct falls squarely within the ‘hard core’ of the statute’s proscriptions * * The court of appeals’ speculation about a married couple being prosecuted for sexual conduct under the ordinance is beside the point. The ordinance is not void for vagueness if the activities of which the defendants here were accused are clearly proscribed by the ordinance, even if other proscriptions of the same ordinance are so vaguely worded as not to put ordinarily intelligent persons on notice of what conduct is unlawful.

Unfortunately, because the case was dismissed, no factual record was developed at trial. Appellant suggests, however, that had it been able to proceed it would have shown that the defendants for a $25 fee conducted regularly scheduled group sex parties at their residence which the plain and unambiguous “hard core” of Ordinance No. 36-86 prohibits. Moreover, by outlawing group sex parties, the city of South Euclid did not violate a fundamental constitutional right. In Bowers v. Hardwick (1986), 478 U.S. 186, the United States Supreme Court refused to extend the constitutional protection afforded sexual relations between a married couple by Griswold v. Connecticut (1965), 381 U.S. 479, to sexual relations between homosexual or other consenting adults, id. at 195-196, including, presumably, attendees at group sex parties.

The courts below also held the ordinance to be overbroad on its face and as applied. Unlike vagueness, facial overbreadth can invalidate a statute based on hypothetical applications that would prohibit constitutionally protected activities, even if defendants’ alleged actual conduct was clearly proscribed by the statute. See, e.g., Coates v. Cincinnati (1971), 402 U.S. 611; Dombrowski v. Pfister (1965), 380 U.S. 479. However, as we noted in State v. Young, supra, at 251, 525 N.E. 2d at 1367; «* * * where * * * a statute regulates conduct rather than pure speech, its overbreadth ‘* * * must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.’ Broadrick v. Oklahoma (1973), 413 U.S. 601, 615.” (Emphasis added.) Ordinance No. 36-86 does not regulate pure speech but sexual conduct, and its intended “plainly legitimate sweep” is prohibition of such constitutionally unprotected activities as group sex and sexual conduct among persons who are not married to each other, activities associated with the operation of a *154brothel. When pure speech is not involved, the United States Supreme Court has refused to declare a statute unconstitutional on account of facial overbreadth unless “* * * it reaches a substantial number of impermissible applications. * * *” New York v. Ferber (1982), 458 U.S. 747, 771. The only plainly impermissible application of the ordinance put forth by the court below was prosecution of a husband and wife for operating a brothel by engaging in marital relations alone in their own home. Given the legitimate purpose of the ordinance and the great unlikelihood of such an application, I cannot agree that the ordinance is overbroad on its face. See State v. Diana (1976), 48 Ohio St. 2d 199, 2 O.O. 3d 387, 357 N.E. 2d 1090, certiorari denied (1977), 431 U.S. 917.

If the ordinance is not overbroad on its face, it cannot follow that it is therefore overbroad as applied. For the application of Ordinance No. 36-86 to the Richardsons to be overbroad as applied, the actual conduct for which they were prosecuted would have to enjoy constitutional protection. But as noted above, in Bowers, supra, the United States Supreme Court refused to extend the fundamental right of privacy announced in Griswold, supra, to anyone other than married couples. Had it been allowed to proceed, the city of South Euclid would have had an • opportunity to show how it applied the ordinance to the specific conduct of the Richardsons in operating a brothel,2' and the trial court could have decided whether their alleged conduct was constitutionally protected or permissibly proscribed by the ordinance.

For the foregoing reasons, I would reverse the judgment of the court of appeals and remand the cause for trial.

Douglas and Resnick, JJ., concur in the foregoing dissenting opinion.

R.C. 2907.01(A) defines “sexual conduct” as follows:

“ ‘Sexual conduct’ means vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.”

Webster’s Third New International Dictionary (1986) 284, defines “brothel” as follows:

“* * * an establishment (as a house or apartment) in which prostitutes are domidied and ply their trade usu. as employees or on a commission basis, the keeping of such an establishment being at common law and usu. by statute a misdemeanor[.]”