Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

EQUAL PROTECTION (ME114)

Also see Indigency; Jury Matters; Sentencing; Prosecutors, Powers and duties.

Fourteenth Amendment, U.S. Constitution -- No state shall "deny to any person within its jurisdiction the equal

protection of the laws."

Article I, Section 2, Ohio Constitution: "All political power is inherent in the people. Government is instituted for

their equal protection and benefit..."

State v. Fugate, 117 Ohio St. 3d 261, 2008-Ohio-856, ¶22 -- "When a defendant is sentenced to consecutive terms, the terms of imprisonment are served one after another. Jail-time credit applied to one prison term gives full credit that is due, because the credit reduces the entire length of the prison sentence. However, when a defendant is sentenced to concurrent terms, credit must be applied against all terms, because the sentences are served simultaneously. If an offender is sentenced to concurrent terms, applying credit to one term only would, in effect, negate the credit for the time that the offender has been held. To deny such credit would constitute a violation of the Equal Protection Clause. Therefore we hold that when a defendant is sentenced to concurrent prison terms for multiple charges, jail-time credit pursuant to R.C. 2967.191 must be applied toward each concurrent prison term."

State v. Michel, 181 Ohio App. 3d 124, 2009-Ohio-450 -- Appellate review of selective prosecution claims is de novo, conducted as is review of suppression rulings where the fact finding by the trial court is accepted if sufficiently supported by the evidence. To establish selective prosecution the defendant must (1) demonstrate he has been singled out for prosecution, and (2) this was or an invidious or discriminatory purpose. Defendant here failed to meet the first prong. Others had been prosecuted, but the extent of prosecution was limited by resources.

State v. Hartikainen (2000), 137 Ohio App. 3d 421 -- The state, not being a legal person, has no standing to assert due process or equal protection against itself.

Cleveland v Maistros (2001), 145 Ohio App. 3d 346 -- R.C. 2907.07(B), the same sex portion of the importuning statute, held to violate equal protection through application of the rational relationship standard. Also see State v. Thompson 95 Ohio St. 3d 264, 2002-Ohio-2124 -- Syllabus: "R.C. 2907.07(B) is facially invalid under the Fourteenth Amendment to the United States Constitution and Section 2, Article I of the Ohio Constitution." The Supreme Court finds the provision is a content-based restriction on speech and applies the strict scrutiny test. Though the parties agreed rational relationship standard applied, the court is not bound by their positions. See concurring opinion which maintains court should hold provision invalid under the rational relationship standard which would have broader implications in matters involving gay rights.

State v. Norris 147 Ohio App. 3d 224, 2002-Ohio-1033 -- A Cincinnati ordinance required licensing of all massage practitioners, but was enforced only against those advertising such services in a sexually suggestive manner in the "adult" section of a weekly newspaper. City admitted selective enforcement, but maintained it was proper. Equal protection violation found.

Cleveland v. Rafter, 127 Ohio Misc. 2d 87, 2004-Ohio-1399 -- Charging the defendant with aggravated disorderly conduct shortly after he threatened to sue the Browns is highly suspect, and raises questions of bad faith and retaliatory prosecution, but defendant failed to make out the elements of a selective prosecution claim.

State v. Melhado, Franklin App. No. 02AP-458, 2003-Ohio-4763 -- If the jury recommends death, the judge may elect to impose any of the life sentences, but if the recommendation is life without parole, only that sentence may be imposed. No equal protection violation found.

State, ex rel. Heller, v. Miller (1980), 61 Ohio St. 2d 6, 8 -- As to the guarantee of equal protection under the Ohio Constitution: "...The Ohio Constitution's guarantees in these matters are substantially equivalent to the United States Constitution's guarantees. The phrase in Section 2 of Article I that '***[g]overnment is instituted for their [the people's] equal protection and benefit' is essentially identical to the Fourteenth Amendment's equal protection clause. Kinney v. Kaiser Aluminum & Chemical Corp. (1975), 41 Ohio St. 2d 120, 123... As a consequence, decisions of the United States Supreme Court can be used to give meaning to the guarantees of Article I of the Ohio Constitution."

Williams v. Rhodes (1968), 393 U.S. 23, 30-34 -- A strict scrutiny test is to be applied when fundamental rights, such as those secured by the First Amendment, are involved. Also see Thomas v. Collins (1944), 323 U.S. 516, 530.

Massachusetts Board of Retirement v. Murgia (1976), 427 U.S. 307, 314 -- When a fundamental right or the rights of a suspect class are not involved, there need only be a rational basis for differential treatment, "...reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible or necessary. Dandridge v. Williams [(1970), 397 U.S. 471] at 485. Such action by a legislature is presumed to be valid."

Pack v. Cleveland (1982), 1 Ohio St. 3d 129 -- A person potentially facing prosecution under a statute may bring a declaratory judgment action to determine whether it is violative of equal protection or other constitutional provisions.

Vasquez v. Hillery (1986), 474 U.S. 254 -- Intentional racial discrimination in the selection of grand jurors is a denial of equal protection.

Batson v. Kentucky (1986), 476 U.S. 79; Powers v. Ohio (1991), 499 U.S. 400 -- Regardless of the race of the defendant, the prosecutor may not exercise his peremptory challenges in a manner calculated to exclude racial minorities.

J.E.B. v. Alabama (1994), 511 U.S. 1419 -- The Equal Protection Clause of the Fourteenth Amendment prohibits discrimination by representatives of the state in the jury selection process through the exercise of gender-based peremptory challenges. Case involved the removal of all male jurors in a paternity action by a state-employed attorney. Decision does not extend the rule to private parties in civil litigation or to criminal defendants.

In re Morehead (1991), 75 Ohio App. 3d 711 -- While race and cultural heritage are factors which may be considered by a court, it is a violation of equal protection to pursue a police restricting the adoption of black children by white parents.

United States v. Batchelder (1979), 442 U.S. 114, 123-124 -- "This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants...Whether to prosecute and what charge to file or bring before a grand jury rest in the prosecutor's discretion."

State v. Miles (1983), 8 Ohio App. 3d 410 -- Headnote: "Where two statutes proscribe the same criminal conduct, in the absence of proof that the prosecution is based upon an impermissible criterion such as race, religion, or other arbitrary classification, a defendant may be charged and convicted under that statute providing the greater penalty." But see State v. Volpe (1988), 38 Ohio St. 3d 191 -- Specifically defined misdemeanor offense governs over generally applicable felony.

State v. Wilson (1979), 58 Ohio St. 2d 52, 55-59 -- No equal protection violation presented by the burglary and aggravated burglary statutes as the latter requires additional elements of proof.

State v. Brown (1996), 117 Ohio App. 3d 6 -- Inclusion of minor misdemeanors as predicate offenses for involuntary manslaughter is not a denial of equal protection. See dissent.

Cincinnati v. Thompson (1994), 96 Ohio App. 3d 7 -- Cincinnati's medical facility trespass ordinance survives equal protection challenge by anti-abortion demonstrators.

Cleveland v. Huff (1984), 14 Ohio App. 3d 207 -- Cleveland prostitution ordinances providing differing penalties for the same conduct violate equal protection.

State v. Flynt (1980), 63 Ohio St. 2d 132 -- Some selectivity in enforcement of criminal provisions is not a constitutional violation. To establish impropriety the defendant must show: (1) that others similarly situated have not generally been proceeded against and that he has been singled out for prosecution; and (2) that the government's choice of who to prosecute has been invidious or in bad faith, for example based upon an improper consideration such as race, religion or the desire to prevent exercise of constitutional rights. Also see State v. Freeman (1985), 20 Ohio St. 3d 55, 58 (must show intentional and purposeful discrimination).

State v. Wolery (1976), 46 Ohio St. 316, 325-326 -- A person claiming selective prosecution must articulate the classification defining the difference between those not prosecuted and himself. Also see Olyer v. Boles (1962), 368 U.S. 448, 456;

Cleveland v. Trzebuckowski (1999), 85 Ohio St 524 -- Selective enforcement of ordinance banning juveniles from pool halls against privately owned properties, but not against municipal facilities, violates equal protection.

Whitehall v. Moling (1987), 40 Ohio App. 3d 66 -- The Equal Protection Clause does not prohibit enforcement of a ban of parking commercial vehicles on residential property on a complaints only basis.

Toledo v. Wacenske (1994), 95 Ohio App. 3d 282 -- No equal protection violation found in a Toledo ordinance which only requires motorcyclists to operate at all times with the headlight on.

State v. Lamp (1977), 59 Ohio App. 2d 125 -- No equal protection violation in prosecutor's office establishing a special program for prosecution of "career criminals."

State v. Ward (1993), 92 Ohio App. 3d 631 -- Providing an enhanced penalty for drug sales within 1000 feet of a schoolyard does not violate due process or equal protection.

State v. Thompkins (1996), 75 Ohio St. 3d 75 -- Court rejects equal protection attack on the mandatory license suspension required upon conviction of drug offenses, even if an auto has not been used in the commission of the crime, finding a rational basis for the legislation. Since all drug offenders are treated equally, court questions whether there is a classification.

State v. Bonello (1981), 3 Ohio App. 3d 365 -- Requirement of actual incarceration for some drug offenses not violative of equal protection.

State v. Woerner (1984), 16 Ohio App. 3d 60, 61 -- No equal protection violated by fact those prosecuted for OMVI in Mayor's Courts under municipal ordinances may receive a lesser penalty than those prosecuted under the Revised Code provision.

State ex rel. Lemmon v. Ohio Adult Parole Authority (1997), 78 Ohio St. 3d 186 -- The amended sentencing provisions of Senate Bill 2 do not afford those serving indeterminate sentences imposed before July 1, 1996 the basis for a mandamus action seeking release after serving what would be their maximum sentences under the new provisions. Court finds no denial of due process or equal protection, citing Sperry & Hutchinson Co. v. Rhodes (1911), 220 U.S. 502, 505 for the proposition "[T]he 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time."

State v. Strausbaugh (1997), 87 Ohio Misc. 2d 31 -- Defendant was sentenced to five years after shooting her boyfriend in the leg. Prosecutor and boyfriend concurred in motion for judicial release filed after serving 180 days, though 2929.20(B)(3) provides those serving between five and ten years must wait five years before filing. Court finds equal protection violation and orders release.

Return to top of page

Return to Index