[Cite as Cleveland v. Williams, 2018-Ohio-2937.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106454




                                        CITY OF CLEVELAND

                                                         PLAINTIFF-APPELLANT

                                                   vs.

                                         RONNIE WILLIAMS

                                                         DEFENDANT-APPELLEE




                                              JUDGMENT:
                                               DISMISSED




                                       Criminal Appeal from the
                                      Cleveland Municipal Court
                                      Case No. 2017 CRB 015467

        BEFORE: Celebrezze, J., Stewart, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: July 26, 2018
ATTORNEYS FOR APPELLANT

Barbara A. Langhenry
City of Cleveland
Director of Law
By:     Omar Siddiq
        Jennifer M. Kinsley
Assistant City Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

James L. Hardiman
3615 Superior Avenue, Suite 3101-D
Cleveland, Ohio 44114


AMICI CURIAE

Attorneys For State of Ohio

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113

Attorney for NAACP

Donald C. Williams
Donald C. Williams & Associates, L.P.A.
55 Public Square, Suite 2100
Cleveland, Ohio 44113

Attorneys For Cuyahoga County Public Defender

Mark Stanton
Cuyahoga County Public Defender
By:   John T. Martin
       Ashley E. Loyke
Assistant Public Defenders
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Plaintiff-appellant, the city of Cleveland (“city”), filed this discretionary appeal from

a judgment of the Cleveland Municipal Court, for which leave was granted pursuant to R.C.

2945.67(A). The city sought to appeal the trial court’s determination that Greater Cleveland

Regional Transit Authority’s (“RTA”) fare enforcement policy is unconstitutional.            After a

thorough review of the record and law, this court dismisses the city’s appeal.

                                  I. Factual and Procedural History

       {¶2} The instant appeal pertains to RTA’s fare enforcement policy and the

constitutionality thereof.

       {¶3} On July 13, 2017, RTA police officer Michael Lewis boarded an RTA coach bus

and conducted an inspection of the fare cards of the passengers that were on board. At the time

that Officer Lewis boarded the bus, defendant-appellee, Ronnie Williams, had already boarded

the bus and was seated with the other passengers.      When Officer Lewis approached Williams,

Williams indicated that he did not have a fare card.      Officer Lewis ultimately requested that

Williams step off the bus and issued him a citation for fare evasion, a fourth-degree misdemeanor

in violation of Cleveland Codified Ordinances 605.11(a), misconduct involving a public

transportation system.       Williams was arraigned on July 27, 2017. He pled not guilty to the

misconduct charge.

       {¶4} Williams elected to act pro se for purposes of trial.     A bench trial commenced on

August 9, 2017. At the close of the bench trial, the trial court opined that the absence of a fare

card was insufficient proof of evasion of fare. The trial court indicated that it would take the

matter under advisement, and encouraged the parties to brief the issue. Furthermore, the trial

court requested the public defender’s office to file an amicus brief representing Williams’s
interests.

        {¶5} The city filed its brief on August 31, 2017.    The public defender’s office filed an

amicus brief on September 8, 2017.

        {¶6} On October 27, 2017, the trial court issued a judgment entry in which it found

Williams not guilty of fare evasion. The trial court’s judgment entry referenced an opinion that

was attached thereto. In the opinion, dated October 26, 2017, the trial court determined that

RTA’s fare enforcement policy was unconstitutional.         The trial court concluded, in relevant

part,

        RTA’s fare enforcement policy is unconstitutional.            It encourages law
        enforcement officers to perform investigatory stops of passengers without
        possessing reasonable, articulable facts that passengers have committed the
        criminal offense of fare evasion under C.C.O. § 605.11(a). RTA police officers
        are decorated with the color of law, and therefore, prohibited from such conduct
        under the Fourth Amendment. RTA’s fare enforcement policy encourages
        arbitrary and abusive police practices.

        {¶7} The city filed the instant appeal and a motion for leave to appeal from the Cleveland

Municipal Court’s judgment on November 3, 2017.              On November 15, 2017, this court,

pursuant to R.C. 2945.67(A), permitted the city to appeal the trial court’s substantive ruling of

law — that the city had not proven its case because RTA’s procedure of checking whether

customers paid a fare violated the Fourth Amendment to the United States Constitution and

Article I, Section 14 of the Ohio Constitution.   This court clarified, however, that the Double

Jeopardy Clause precluded the city from seeking to reverse the trial court’s verdict finding

Williams not guilty of fare evasion.

        {¶8} The city and Williams provided consent to the National Association for the

Advancement of Colored People (“NAACP”) to file an amicus brief in support of Williams.

The state of Ohio filed a motion for leave to file a delayed amicus curiae brief in support of the
city, which this court granted on April 24, 2018. The state filed an amicus brief on May 7,

2018.

        {¶9} The city assigns one error for review:

        I. Because it is a consensual encounter, the method of fare enforcement currently
        employed by Greater Cleveland Regional Transit Authority does not violate the
        Fourth Amendment protection against unreasonable search and seizure.

                                      II. Law and Analysis

        {¶10} As an initial matter, we note that the city is not appealing the trial court’s verdict

finding Williams not guilty of fare evasion.       Rather, the city is appealing the trial court’s

substantive legal ruling that RTA’s fare enforcement policy is unconstitutional.

        {¶11} Section 3(B)(2), Article IV of the Ohio Constitution establishes that courts of

appeals “shall have such jurisdiction as may be provided by law to review and affirm, modify, or

reverse judgments or final orders of the courts of record inferior to the courts of appeals within

the district.” (Emphasis added.) The Ohio Supreme Court has interpreted this constitutional

provision to mean that “‘the state has no absolute right of appeal in a criminal matter unless

specifically granted such right by statute.’” State ex rel. Steffen v. Judges of the Court of

Appeals for the First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d 906, ¶

18, quoting State v. Fisher, 35 Ohio St.3d 22, 24, 517 N.E.2d 911 (1988).

        The state’s right to appeal in criminal cases is governed by R.C. 2945.67(A),
        which provides:

        “A prosecuting attorney * * * may appeal as a matter of right any decision of a
        trial court in a criminal case * * * which decision grants a motion to dismiss all or
        any part of an indictment, complaint, or information, a motion to suppress
        evidence, or a motion for the return of seized property or grants post conviction
        relief pursuant to sections 2953.21 to 2953.24 of the Revised Code, and may
        appeal by leave of the court to which the appeal is taken any other decision,
        except the final verdict, of the trial court in a criminal case * * *.”
Steffen at ¶ 19-20, quoting R.C. 2945.67(A). Accordingly, this court has discretionary authority

pursuant to R.C. 2945.67(A) to review the trial court’s substantive law ruling made in the city’s

prosecution for fare evasion that resulted in a judgment of acquittal so long as the judgment itself

is not appealed. See State v. Bistricky, 51 Ohio St.3d 157, 555 N.E.2d 644 (1990), syllabus.

        {¶12} Generally, this court does not address constitutional issues unless it is absolutely

necessary to do so. “‘Ohio law abounds with precedent to the effect that constitutional issues

should not be decided unless absolutely necessary.’” Ohioans for Fair Representation, Inc. v.

Taft, 67 Ohio St.3d 180, 183, 616 N.E.2d 905 (1993), quoting Hall China Co. v. Pub. Utils.

Comm., 50 Ohio St.2d 206, 210, 364 N.E.2d 852 (1977).

        {¶13} “Constitutional questions will not be decided until the necessity for a decision

arises on the record before the court.” State ex rel. Herbert v. Ferguson, 142 Ohio St. 496, 52

N.E.2d 980 (1944), paragraph two of the syllabus.     Accord Fulton v. Bd. of Zoning Appeals, 8th

Dist. Cuyahoga No. 104561, 2017-Ohio-971, ¶ 10.

        Although the doctrine of constitutional avoidance tends to apply most often in the
        context of appeals, the doctrine applies equally to the trial courts. See, e.g.,
        Risner v. Ohio Dept. of Natural Resources, 144 Ohio St.3d 278, 2015-Ohio-3731,
        42 N.E.3d 718, ¶ 29 (noting that trial court properly avoided reaching
        constitutional issue when it decided [the] matter based on statutory-interpretation
        principles).

Fulton at ¶ id.

        {¶14} Accordingly, assuming, arguendo, that the constitutional issue in this case is

capable of repetition, this court is not obligated under R.C. 2945.67(A) to review the trial court’s

substantive law ruling.   Rather, the statute provides this court with discretionary authority to do

so.   In re M.M., 8th Dist. Cuyahoga No. 96776, 2011-Ohio-6758, ¶ 6, citing State v. Empe, 8th

Dist. Cuyahoga No. 90333, 2008-Ohio-3803, ¶ 4, and Bistricky, 51 Ohio St.3d 157, 555 N.E.2d
644.

        {¶15} As an initial matter, we must note that the trial court’s judgment in this case is

confusing.    The trial court issued two conflicting judgment entries in disposing of the case.

First, in an October 27, 2017 judgment entry,1 the trial court found Williams not guilty of fare

evasion.     The judgment entry’s “notes” section provides, “opinion attached,” presumably

referencing a second judgment entry, dated October 26, 2017, in which the court addressed the

Fourth Amendment issue.

        {¶16} In the October 26, 2017 judgment entry addressing the Fourth Amendment issue,

the trial court concluded that RTA’s fare enforcement policy is unconstitutional, and as a result,

dismissed the fare evasion charge against Williams.          The trial court did not indicate whether the

dismissal was with or without prejudice. The trial court went on to conclude that “[s]ince the

initial stop of [Williams] was unconstitutional, the case is dismissed, and the issue of fare

evasion is moot.”

        {¶17} After reviewing the record, we cannot say that it was absolutely necessary for the

trial court to delve into the issue of the constitutionality of RTA’s fare enforcement policy.

Although the trial court’s judgment was confusing, the court’s October 27, 2017 judgment entry,

finding Williams not guilty of fare evasion, reflects that the trial court disposed of the city’s

prosecution on the merits. Furthermore, the Fourth Amendment issue based upon which the

trial court concluded that RTA’s fare enforcement policy was unconstitutional is underdeveloped

in the record before this court.

        {¶18} The trial court raised the Fourth Amendment issue sua sponte in its October 26,


        1
            The “event date” of the judgment entry is October 27, 2017. The judgment entry was received by the
clerk’s office for journalization on October 30, 2017.
2017 judgment entry.       The issue was not raised or addressed by the parties during trial. At the

close of the bench trial, the trial court encouraged the parties to submit briefing on the issue of

whether “[t]he mere absence of showing proof of fare is * * * not sufficient for proof of [fare]

evasion[.]”    (Tr. 12.)     The trial court did not, however, request briefing on the Fourth

Amendment issue.

        {¶19} The only evidence in the record before this court regarding the Fourth Amendment

issue, RTA’s fare enforcement policy, or the constitutionality of the fare enforcement policy is

RTA’s “Police Department Policy & Procedures” that the city attached as exhibit No. 7 to its

post-trial brief.   During oral arguments, the parties discussed the differences between RTA’s

HealthLine, Red, Green, and Blue Lines, and the policies for paying fares on these lines.

During trial, Officer Lewis briefly described the policy for fare payment on the HealthLine. (Tr.

7.) However, he did not address the fare payment policies for RTA’s other lines, and this

information is not in the record before this court.

        {¶20} During oral arguments, the parties disputed (1) whether Williams was asked to step

off of the bus and issued a citation for fare evasion, suggesting that the encounter between

Officer Lewis and Williams was consensual, or (2) whether Officer Lewis removed Williams

from the bus and “detained” him, implicating the Fourth Amendment.         Officer Lewis testified at

trial that when Williams indicated he did not have a valid fare card, he “pulled [Williams] off the

coach[.]” (Tr. 8.) Williams also testified that he was “pulled off the bus” by Officer Lewis.

(Tr. 11.) Other than Officer Lewis’s testimony about his encounter with Williams on July 13,

2017, there was no testimony presented during trial regarding the fare enforcement policy or the

constitutionality of the policy.

        {¶21} Officer Lewis testified that on the HealthLine, passengers usually purchase a pass
prior to boarding.   (Tr. 7.) Williams testified that he did not have a fare card on the day in

question because the machine was not working.       (Tr. 12.) He asserted that he paid a one-way

fare in cash at the time he boarded the HealthLine. (Tr. 12.)

        {¶22} Other than Williams’s assertion that the machine was not working properly, there

is no evidence in the record about the machine from which Williams purportedly attempted to

purchase a fare card. Section (IV)(C)(f) of RTA’s “Police Department Policy & Procedures,”

governing fare enforcement, provides in pertinent part that “[i[f the passenger states that a Ticket

Vending Machine (TVM) is not functioning properly, the [Fare Enforcement Officer] or Transit

Police Officer should contact Transit Police Dispatch and attempt to verify this information.”

This policy was not addressed during trial, and we are unable to determine whether the officer

complied with the policy during the encounter with Williams.

        {¶23} Another aspect of the constitutional-avoidance doctrine is that courts should not

raise constitutional issues sua sponte.   First Merchants Bank v. Gower, 2d Dist. Darke No.

2011-CA-11, 2012-Ohio-833, ¶ 18.       In Ohio Pub. Emps. Retirement Sys. v. Coursen, 156 Ohio

App.3d 403, 2004-Ohio-1229, 806 N.E.2d 197 (9th Dist.), a case involving payment of survivor

benefits, the trial court, sua sponte, declared portions of R.C. Chapter 145 unconstitutional. On

appeal, the Ninth District reversed the trial court’s judgment, explaining that there was no reason

for the trial court “to delve into the issue of the constitutionality of various sections of R.C.

Chapter [145],” particularly because the constitutional issue had not been raised by either party.

Id. at ¶ 6.

        {¶24} In this case, the record reflects that the trial court raised the Fourth Amendment

issue — an issue that was personal to Williams — sua sponte. The trial court essentially

stepped into the shoes of Williams and/or defense counsel and raised the Fourth Amendment
issue on Williams’s behalf.     Like Coursen, the constitutional issue had not been raised by the

city or Williams, and we cannot say that there was a reason or that it was necessary, much less

absolutely necessary, for the trial court to delve into the issue of the constitutionality of RTA’s

fare enforcement policy or raise the issue on Williams’s behalf.

       {¶25} In light of the fact that it was not absolutely necessary for the trial court to raise the

Fourth Amendment issue, and based on the minimal facts and evidence in the record regarding

the Fourth Amendment issue and RTA’s fare enforcement policy, we decline to exercise our

discretionary authority to review the trial court’s substantive legal ruling in this case. Although

this court previously granted the city leave to appeal the trial court’s judgment, upon further

review of the entire record before this court and the arguments presented during oral arguments,

we must reconsider our decision and find that the city was improvidently granted leave to appeal.

       {¶26} Accordingly, the appeal is dismissed.

       It is ordered that appellee recover of appellant costs herein taxed.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
