State ex rel. Bray v. Russell

[This opinion has been published in Ohio Official Reports at 

89 Ohio St.3d 132

.]




   THE STATE EX REL. BRAY, APPELLANT, v. RUSSELL, WARDEN, APPELLEE.
                            HADDAD V. RUSSELL, WARDEN.
              WHITE, APPELLEE, v. KONTEH, WARDEN, APPELLANT.
               [Cite as State ex rel. Bray v. Russell, 

2000-Ohio-116

.]
Criminal law—Bad time added to prison term for violation occurring during
        course of prisoner’s stated prison term—R.C. 2967.11 violates the
        constitutional doctrine of separation of powers and is therefore
        unconstitutional.
R.C. 2967.11 violates the constitutional doctrine of separation of powers.
  (Nos. 98-2694, 99-273 and 99-542—Submitted November 30, 1999—Decided
                                      June 14, 2000.)
    APPEAL from the Court of Appeals for Warren County, No. CA98-06-068.
                                   IN HABEAS CORPUS.
     APPEAL from the Court of Appeals for Trumbull County, No. 99-T-0020.
                                  __________________
        {¶ 1} In 1997, appellant Gary Bray was charged with and convicted of drug
possession and sentenced to an eight-month prison term. While in prison, Bray
allegedly assaulted a prison guard in violation of R.C. 2903.13. Pursuant to R.C.
2967.11(B), the Ohio Parole Board imposed a ninety-day bad-time penalty to be
added to Bray’s original term.
        {¶ 2} Bray’s original sentence of eight months for drug possession expired
on June 5, 1998, at which time his additional ninety-day penalty began. On June
12, 1998, Bray filed a writ of habeas corpus in the Court of Appeals for Warren
County, claiming that Warden Harry Russell was unlawfully restraining him. Bray
completed his ninety-day bad-time penalty and the warden moved to dismiss the
complaint as moot.
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       {¶ 3} The court of appeals rejected the warden’s motion because it found
that the issues raised by Bray were capable of repetition yet evading review. On
the merits, Bray argued that R.C. 2967.11 was facially unconstitutional because it
violated due process, equal protection, and separation of powers. The court of
appeals rejected each of Bray’s constitutional challenges.
       {¶ 4} In 1998, Richard Haddad was convicted of attempted aggravated
assault and sentenced to a nine-month prison term. Haddad was scheduled for
release on November 12, 1998. However, in October 1998, while in prison, Haddad
allegedly committed an assault and was sentenced to an additional ninety days of
incarceration pursuant to R.C. 2967.11(B).
       {¶ 5} On February 3, 1999, Haddad filed the instant petition for a writ of
habeas corpus in this court, alleging that Warden Harry Russell was unlawfully
restraining him and claiming that R.C. 2967.11 was facially unconstitutional.
Haddad completed his ninety-day bad-time penalty, and Russell stated in his return
of writ that Haddad had been released upon completion of sentence.
       {¶ 6} In 1997, appellee Samuel White was convicted of receiving stolen
property and sentenced to a sixteen-month prison term. White was scheduled for
release on December 22, 1998. However, in June 1998, White allegedly committed
an assault and was sentenced to an additional thirty days of incarceration pursuant
to R.C. 2967.11(B). In the late summer of 1998, White allegedly committed
another assault and was sentenced to an additional ninety days.
       {¶ 7} On February 5, 1999, White filed for a writ of habeas corpus in the
Court of Appeals for Trumbull County, claiming that Warden Khelleh Konteh was
unlawfully restraining him. On March 23, 1999, the court of appeals held that R.C.
2967.11 was unconstitutional because it violated due process and separation of
powers. The court did not address White’s equal protection claim.
       {¶ 8} The cause is now before this court pursuant to appeals as of right in
case Nos. 98-2694 and 99-542, and upon the pleadings in case No. 99-273.




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                                January Term, 2000




                              __________________
       David H. Bodiker, State Public Defender, Jill E. Stone and Alison M. Clark,
Assistant State Public Defenders, for appellant Bray, appellee White, and petitioner
Haddad.
       Betty D. Montgomery, Attorney General, Edward B. Foley, pro hac vice,
State Solicitor, Todd R. Marti and Michele M. Schoeppe, Assistant Attorneys
General, for appellant Konteh, and appellee and respondent Russell.
                              __________________
       PFEIFER, J.
       {¶ 9} This case involves a facial challenge to the constitutionality of R.C.
2967.11, which was originally raised in the court of appeals by appellant Bray and
appellee White, and in petitioner Haddad’s petition for habeas corpus.           We
conclude that R.C. 2967.11 violates the constitutional doctrine of separation of
powers. Accordingly, we need not address whether R.C. 2967.11 violates equal
protection or due process.
       {¶ 10} This court has repeatedly affirmed that the doctrine of separation of
powers is “implicitly embedded in the entire framework of those sections of the
Ohio Constitution that define the substance and scope of powers granted to the three
branches of state government.” S. Euclid v. Jemison (1986), 

28 Ohio St.3d 157, 158-159

, 28 OBR 250, 251, 

503 N.E.2d 136, 138

; State v. Warner (1990), 

55 Ohio St.3d 31, 43-44

, 

564 N.E.2d 18, 31

. See State ex rel. Ohio Academy of Trial
Lawyers v. Sheward (1999), 

86 Ohio St.3d 451, 475

, 

715 N.E.2d 1062, 1085

; State
v. Hochhausler (1996), 

76 Ohio St.3d 455, 463

, 

668 N.E.2d 457, 465-466

.
       {¶ 11} “The essential principle underlying the policy of the division of
powers of government into three departments is that powers properly belonging to
one of the departments ought not to be directly and completely administered by
either of the other departments, and further that none of them ought to possess
directly or indirectly an overruling influence over the others.” State ex rel. Bryant




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v. Akron Metro. Park Dist. (1929), 

120 Ohio St. 464, 473

, 

166 N.E. 407, 410

. See,
also, Knapp v. Thomas (1883), 

39 Ohio St. 377

, 391-392; State ex rel. Finley v.
Pfeiffer (1955), 

163 Ohio St. 149

, 

56 O.O. 190

, 

126 N.E.2d 57

, paragraph one of
the syllabus.
       {¶ 12} The state argues that the doctrine of separation of powers “applies
only when there is some interference with another governmental branch.” See State
ex rel. Plain Dealer Publishing Co. v. Cleveland (1996), 

75 Ohio St.3d 31, 38

, 

661 N.E.2d 187, 193

. See, also, Krent, Separating the Strands in Separation of Powers
Controversies (1988), 74 Va.L.Rev. 1253 (discussion of functionalist approach
advocated by the state); Vine, Constitutionalism and the Separation of Powers (2
Ed.1998) 402. We disagree. The language relied upon by the state’s argument was
dictum and the underlying concept was not developed in Plain Dealer, prior to
Plain Dealer, or subsequent to Plain Dealer.
       {¶ 13} Further, the very purpose of the doctrine of separation of powers
undercuts the argument. The people adopted the Ohio Constitution, not the
legislative, executive, or judicial branches of government.        In Zanesville v.
Zanesville Tel. & Tel. Co. (1900), 

63 Ohio St. 442

, 451, 

59 N.E. 109

, 110, this court
stated: “The distribution of the powers of government, legislative, executive and
judicial, among three co-ordinate branches, separate and independent of each other,
is a fundamental feature of our system of constitutional government. In the
preservation of these distinctions is seen, by many able jurists, the preservation of
all the rights, civil and political, of the individual, secured by our free form of
government; and it is held that any encroachment by one upon the other is a step in
the direction of arbitrary power.” Though the judgment in Zanesville was reversed
(1901), 

64 Ohio St. 67

, 

59 N.E. 781

, we adhere to the principles espoused therein.
The reason the legislative, executive, and judicial powers are separate and balanced
is to protect the people, not to protect the various branches of government.




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                                 January Term, 2000




        {¶ 14} R.C. 2967.11(B) states: “As part of a prisoner’s sentence, the parole
board may punish a violation committed by the prisoner by extending the prisoner’s
stated prison term for a period of fifteen, thirty, sixty, or ninety days in accordance
with this section. * * * If a prisoner’s stated prison term is extended under this
section, the time by which it is so extended shall be referred to as ‘bad time.’ ” A
“violation” is defined as “an act that is a criminal offense under the law of this state
or the United States, whether or not a person is prosecuted for the commission of
the offense.” R.C. 2967.11(A).
        {¶ 15} Other sections in R.C. 2967.11 set forth the procedures to be
followed to determine whether a “violation,” a crime, has been committed. In short,
R.C. 2967.11(C), (D), and (E) enable the executive branch to prosecute an inmate
for a crime, to determine whether a crime has been committed, and to impose a
sentence for that crime. This is no less than the executive branch’s acting as judge,
prosecutor, and jury. R.C. 2967.11 intrudes well beyond the defined role of the
executive branch as set forth in our Constitution.
        {¶ 16} In our constitutional scheme, the judicial power resides in the
judicial branch. Section 1, Article IV of the Ohio Constitution. The determination
of guilt in a criminal matter and the sentencing of a defendant convicted of a crime
are solely the province of the judiciary. See State ex rel. Atty. Gen. v. Peters (1885),

43 Ohio St. 629

, 648, 

4 N.E. 81

, 86. See, also, Stanton v. Tax Comm. (1926), 

114 Ohio St. 658, 672

, 

151 N.E. 760, 764

 (“the primary functions of the judiciary are
to declare what the law is and to determine the rights of parties conformably
thereto”); Fairview v. Giffee (1905), 

73 Ohio St. 183

, 190, 

76 N.E. 865

, 867 (“It is
indisputable that it is a judicial function to hear and determine a controversy
between adverse parties, to ascertain the facts, and, applying the law to the facts, to
render a final judgment.”).
        {¶ 17} Prison discipline is an exercise of executive power and nothing in
this opinion should be interpreted to suggest otherwise.            However, trying,




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convicting, and sentencing inmates for crimes committed while in prison is not an
exercise of executive power. Accordingly, we hold that R.C. 2967.11 violates the
doctrine of separation of powers and is therefore unconstitutional.
          {¶ 18} Based on the foregoing, the judgment of the court of appeals in case
No. 98-2694 is reversed, the judgment of the court of appeals in case No. 99-542 is
affirmed, and the petitioner is discharged in case No. 99-273.
                                                                Judgment accordingly.
          MOYER, C.J., RESNICK, F.E. SWEENEY and LUNDBERG STRATTON, JJ.,
concur.
          DOUGLAS and COOK, JJ., dissent.
                                  __________________
          COOK, J., dissenting.
          {¶ 19} The majority decides that “R.C. 2967.11 violates the constitutional
doctrine of separation of powers” because it “enable[s] the executive branch to
prosecute an inmate for a crime, to determine whether a crime has been committed,
and to impose a sentence for that crime.” I differ because I agree with the state’s
premise that “bad time” is part of the original judicially imposed sentence. And
since “bad time” is a part of the offender’s original sentence, then its administration
by the executive branch presents no separation-of-powers issue.
                       I. The Presumption of Constitutionality
          {¶ 20} We know that enactments of the General Assembly are presumed to
be constitutional. In order for this court to declare a statute unconstitutional, it must
appear beyond a reasonable doubt that the statute is incompatible with particular
constitutional provisions. State v. Cook (1998), 

83 Ohio St.3d 404, 409

, 

700 N.E.2d 570, 576

. The majority opinion fails to acknowledge these axioms of judicial
restraint that ought to anchor any analysis involving the separation-of-powers
principle.




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                               January Term, 2000




       {¶ 21} The instant cases present a facial challenge to the constitutionality
of R.C. 2967.11. Such challenges are the most difficult to mount successfully,
because the challenger must establish that no set of circumstances exists under
which the Act would be valid. State v. Coleman (1997), 

124 Ohio App.3d 78, 80

,

705 N.E.2d 419, 421

, citing United States v. Salerno (1987), 

481 U.S. 739, 749

,

107 S.Ct. 2095, 2102-2103

, 

95 L.Ed.2d 697, 710

.
II. The United States Supreme Court Assesses Interference with Another Branch
                     under the Separation-of-Powers Doctrine
       {¶ 22} The interconnected roles of the executive and judicial branches
under the “bad time” scheme would not offend the separation-of-powers doctrine
if analyzed according to federal jurisprudence on the subject. The United States
Supreme Court has “squarely rejected” the “ ‘archaic view of the separation of
powers as requiring three airtight departments of government.’ ” Nixon v. Admr.
of Gen. Serv. (1977), 

433 U.S. 425, 443

, 

97 S.Ct. 2777, 2790

, 

53 L.Ed.2d 867, 891

,
citing United States v. Nixon (1974), 

418 U.S. 683

, 

94 S.Ct. 3090

, 

41 L.Ed.2d 1039

,
and quoting Nixon v. Admr. of Gen. Serv. (D.D.C.1976), 

408 F.Supp. 321, 342

.
       {¶ 23} In its place, the Supreme Court has adopted the more “pragmatic,
flexible approach” advocated by James Madison in Federalist No. 47. 

433 U.S. at 442

, 

97 S.Ct. at 2789

, 

53 L.Ed.2d at 890

. Accordingly, the Supreme Court in Nixon
v. Admr. did not merely consider the nature of the challenged legislative Act (i.e.,
was it “executive” or “judicial”) to determine whether Congress violated the
separation of powers. Rather, the Supreme Court focused on the extent to which
the legislative Act actually “prevent[ed] the Executive Branch from accomplishing
its constitutionally assigned functions.” (Emphasis added.) 

Id. at 443

, 

97 S.Ct. at 2790

, 

53 L.Ed.2d at 891

, citing United States v. Nixon, 

418 U.S. at 711-712

, 

94 S.Ct. at 3109

, 

41 L.Ed.2d at 1066

.
       {¶ 24} If applied to our case, that approach would focus not on whether the
Parole Board’s delegated function under R.C. 2967.11 could be described as




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“adjudicatory” in nature, but would focus instead on the extent to which the “bad
time” statute prevents the judicial branch from accomplishing its constitutionally
assigned functions. 

Id.

       {¶ 25} Until today, Ohio cases reflected the Nixon sort of analysis. In State
ex rel. Plain Dealer Publishing Co. v. Cleveland, we determined that the
separation-of-powers doctrine “applies only when there is some interference with
another governmental branch.” (Emphasis added.) (1996), 

75 Ohio St.3d 31, 38

,

661 N.E.2d 187, 193

. The majority discounts as dictum Plain Dealer’s congruence
with the United States Supreme Court. But this court reiterated the link between
unconstitutional interbranch interference and the separation of powers after Plain
Dealer. In State v. Hochhausler, we held that a statute violated the separation of
powers because the Act “improperly interfere[d]” with the exercise of a court’s
functions by depriving courts of their ability to grant a stay. (1996), 

76 Ohio St.3d 455

, 464, 

668 N.E.2d 457, 466

. I would follow Plain Dealer and Hochhausler
here, assessing whether the adjudicatory functions of the Parole Board under R.C.
2967.11 interfere with the judicial branch by preventing our branch from
accomplishing its own judicial functions.
       {¶ 26} The majority rejects the interference requirement of Nixon v. Admr.
and Plain Dealer, and focuses instead on the form of the prison disciplinary
proceedings that occur under R.C. 2967.11. Accordingly, the majority assigns
significant weight to the fact that R.C. 2967.11(A) defines a bad-time “violation”
as a “criminal offense.” But the fact that the General Assembly chose the drafting
strategy of defining “violations” with reference to the offenses listed in our criminal
code does not transform those disciplinary “violations”—for which administrative
discipline is a constitutionally permissible response—into “crimes” resulting in a
new determination of guilt or innocence. See VFW Post 8586 v. Ohio Liquor
Control Comm. (1998), 

83 Ohio St.3d 79

, 

697 N.E.2d 655

.




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                                January Term, 2000




        {¶ 27} In VFW Post, for example, we determined that in order to find a
violation of an administrative rule regarding gambling devices, the Liquor
Commission must determine that the gambling devices in question were used to
commit one of the gambling offenses listed in the criminal code. Id. at 81, 697
N.E.2d at 658. In the same case, we noted that while a criminal conviction must be
supported by proof beyond a reasonable doubt, a violation of the administrative rule
need only be supported by a preponderance of the evidence.                 Id.   That
administrative discipline may result from “violations” defined with reference to the
criminal code does not prevent an agency from engaging in its delegated
adjudicatory function, even in the absence of a judicial determination of guilt
beyond a reasonable doubt. See In re Eastway (1994), 

95 Ohio App.3d 516, 525

,

642 N.E.2d 1135, 1141

 (holding that the acts of a physician that would constitute a
felony under Ohio law could be considered by the State Medical Board in imposing
discipline, even though the physician was not convicted of a felony as a result of
those acts).
        {¶ 28} The majority also believes that the “bad time” statute impermissibly
permits the Parole Board to “determine whether a crime has been committed” and
“impose a sentence for that crime.” But though R.C. 2967.11(B) permits the Parole
Board to “punish” a prisoner and “extend” a sentence, the General Assembly
carefully noted that this occurs only “[a]s part of” the prisoner’s original
sentence—which is imposed by the judicial branch. See R.C. 2967.11(B). Other
provisions of the Revised Code explicitly confirm that the “bad time” extension is
a part of the offender’s original sentence. R.C. 2929.19(B)(3)(b) requires the
original sentencing judge to notify the offender at the sentencing hearing that “as
part of the sentence, the Parole Board may extend the stated prison term for certain
violations of prison rules.” (Emphasis added.) And R.C. 2943.032 requires the
trial judge to provide similar notice to defendants prior to accepting their pleas.




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       {¶ 29} “Prison disciplinary proceedings are not part of a criminal
prosecution.” Wolff v. McDonnell (1974), 

418 U.S. 539, 556

, 

94 S.Ct. 2963, 2975

,

41 L.Ed.2d 935, 951

. Because I believe that the same can be said for the rule-
infraction proceedings that occur under R.C. 2967.11, I respectfully dissent.
       DOUGLAS, J., concurs in the foregoing dissenting opinion.
                              __________________




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