City of Akron v. Rowland

Alice Robie Resnick, J.,

dissenting. After a thorough consideration of Akron Codified Ordinance 138.26 (“A.C.O. 138.26”), I find it neither unconstitutionally vague nor overbroad. I therefore dissent.

A legislative enactment is entitled to a strong presumption of constitutionality. State v. Collier (1991), 62 Ohio St.3d 267, 269, 581 N.E.2d 552, 553; State v. Anderson (1991), 57 Ohio St.3d 168, 171, 566 N.E.2d 1224, 1226. Appellant has not overcome that presumption.

If an ordinance such as A.C.O. 138.26 is susceptible to several judicial interpretations, and if one of those interpretations will result in a finding that the ordinance is constitutional, that is the preferred interpretation. See Collier, supra, 62 Ohio St.3d at 269, 581 N.E.2d at 553. The majority has initially interpreted A.C.O. 138.26 to contain no specific intent element, and then has relied upon that premise to find that the ordinance is both impermissibly vague and overbroad. However, in my opinion, the correct conclusion is the one *390reached by the court of appeals: A.C.0.138.26 can legitimately be read to include a specific intent requirement, and is therefore constitutional. In finding that the ordinance contains a specific intent requirement, the court of appeals cited two well-reasoned decisions which construed this very ordinance and upheld it. See Akron v. Holley (M.C.1989), 53 Ohio Misc.2d 4, 557 N.E.2d 861; Sheppard v. Akron (May 17, 1991), N.D.Ohio No. 90-CV-299, unreported.

The majority’s statement that the lower courts in this case “rewrote” the ordinance “in such a way as to fundamentally change its meaning” is inaccurate. It is clear to me that the lower courts properly construed the ordinance to reach the correct result. The ordinance provides that an individual commits a violation when he or she acts “under circumstances manifesting the purpose to engage in drug-related activity contrary to any of the provisions of R.C. Chapter 2925 [drug offenses].” Thus, in order to be arrested and convicted, not only must an individual be loitering, but that individual must also act with “the purpose to engage in drug-related activity.”

While it appears the majority would require that the statute read “with the specific intent to engage in drug-related activity” in order to withstand constitutional scrutiny, such precision in drafting is not necessary. It is the task of the legislative body to draft the statute; it is the task of the courts to effectuate the will of the legislative body, if constitutionally permissible. “To be enforceable, legislation need not be drafted with scientific precision.” Anderson, supra, 57 Ohio St.3d at 174, 566 N.E.2d at 1229. The ordinance is constitutional on its face. And where, as here, a trial judge recognizes that the specific intent element is present in the ordinance, and the defendant is found guilty because he acted with the requisite intent, the ordinance is constitutional as applied.

Since A.C.O. 138.26, when properly construed, contains a specific intent requirement, the ordinance is neither vague nor overbroad. The ordinance is not vague: appellant has been unable to show “ ‘that no standard of conduct is specified at all.’ ” Anderson, supra, 57 Ohio St.3d at 171, 566 N.E.2d at 1226, quoting Coates v. Cincinnati (1971), 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214, 217, 58 O.O.2d 481, 482. The ordinance is not overbroad: it does not punish for engaging in constitutionally protected conduct, but instead causes an individual to be subjected to arrest and conviction if the individual engages in criminal activities. See Colten v. Kentucky (1972), 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584.

In order to point out what conduct is implicated by the ordinance’s prohibition, A.C.O. 138.26(B) lists eleven circumstances which are to be taken into account. The presence of these circumstances constitutes evidence of overt acts which indicate that an individual is loitering with the purpose to engage in illegal drug activity. As such, the circumstances serve as notice to potential defendants of *391the conduct the ordinance is intended to reach. Any one of the circumstances, standing alone, may not be grounds for an arrest and prosecution under the ordinance in most cases. However, when as here a .number of circumstances are present at the same time, the probability increases dramatically that the individual is loitering with the purpose to engage in drug-related activity.

Evidence in the record indicates that A.C.O.138.26 may have been (or is being) applied in a racially discriminatory manner, and this is extremely troubling. However, the fact remains that this defendant was appropriately arrested and convicted for violating a valid ordinance. Appellant was found to be doing more than loitering; he was found to be loitering with the purpose to engage in illegal activity. I would affirm the judgment of the court of appeals.

Douglas and F.E. Sweeney, JJ., concur in the foregoing dissenting opinion.