Opposition Brief — Posey v. Ohio

—_—_—

Supreme Court, U.S.

FILED

No. 88-1777 vy a 88

IN THE

pH F. SPANIOL, JR.

i ag ERK

Supreme Court of the United States _“

OCTOBER TERM, 1988

JESSE POSEY, SR., ET AL.,

Petitioners,

v.

STATE OF OHIO,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

RESPONDENT’S BRIEF IN OPPOSITION

CITY OF COLUMBUS

DEPARTMENT OF LAW

RONALD J. O'BRIEN

CITY ATTORNEY

90 West Broad Street, Room 200

Columbus, Ohio 43215

614/645-7385

COUNSEL OF RECORD FOR RESPONDENT

MARIA JUSKIW ARMSTRONG

ASSISTANT CITY PROSECUTOR

375 South High Street, 7th Floor

Columbus Ohio 43215

614/645-7483

OF COUNSEL

MIDWEST LAW PRINTERS AND PUBLISHERS, INC., P.O. Box 856 * Grove City, Ohio 43123

QUESTIONS PRESENTED

IS THE FOURTH AMENDMENT VIOLATED

WHEN AN UNDERCOVER POLICE OFFICER

ENTERS A SOCIAL CLUB AS THE GUEST OF A

MEMBER AND OBSERVES CRIMINAL ACTIVITY

WHICH FORMS THE BASIS FOR A GAMBLING

CHARGE UNDER STATE LAW?

WHERE DIFFERENT SUBCLASSES OF CHARITA-

BLE ORGANIZATIONS ARE DISTINGUISHED BY

THE INTERNAL REVENUE CODE ON THE BASIS

OF THE INUREMENT OF MONETARY BENE-

FITS, AND A STATE STATUTE CRIMINALIZES

GAMBLING ACTIVITY BY THOSE GROUPS ON

THE EXACT SAME BASIS, IS THE EQUAL PRO-

TECTION CLAUSE VIOLATED?

LIST OF PARTIES

The Petitioner in this matter is the Fraternal Order

of Eagles Post 3261, and two employees of the Eagles

Post: Jesse Posey, Sr. and Sharon Parker.

The State of Ohio is the Respondent.

1]

TABLE OF CONTENTS

Page

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sooo sc a och asec siesecacees iv

Constitutional and Statutory Provisions Involved ..... vi

ee hc bk acces keaeewn es 1

Jurisdiction ....... Tt ORT IS Se 2

Constitutional and Statutory Provisions Involved ..... 3

sass tain se seseeveseeaus 4

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TABLE OF AUTHORITIES

Page

CASES:

Commonwealth v. Ginter, 423 A.2d 1024............ 10

(Pa., 1981)

Guidry v. State, 671 P.2d 1277 (Alaska, 1983). ....... 10

Kadrmas v. Dikinson Pub. Schools, 487 U.S. (1988),

534 N.E.2d 61 & 65, 40 Ohio St. 3d at 425...... 11

Lewis v. United States, 385 U.S. 206 (1966).......... 7,8

Maynard v. State, 508 N.E.2d 1346 (Ind., 1987) ...... 10

Mills-Jennings, Inc. v. Dept. of Liquor Control

(1982), 435 N.E.2d 407, 70 Ohio St. 2d 95....... 12

People v. Catania, 366 N.W.2d 38

Leah PR, SIs on nce ceneecnaaesaens 10

Ponce v. Green. 409 F.2d 621 (C.A. 9, 1969),

cert. denied, 397 U.S.1012 .................. )

State v. Ahart, 324 N.W.2d 317 (Iowa, 1982)......... 10

State v. Anglada, 365 A.2d 720 (N.J.,1976).......... 10

State v. Buchwald,196 N.W.2d 445 (Minn., 1972)..... 10

State v. Carey, 417 A.2d 979 (Maine, 1980).......... 10

State v. McCleary, 308 S.E.2d 883 (N.C., 1983),

aff'd, 316 S.E.2d 87 (N.C., 1984)............... 15

State v. McCommas, 398 So. 2d 1100 (La., 1981)...... 10

State v. Nedergard, 753 P.2d 526

CUVEE AO: DIMOU? 5 oo soa cc es ss cwedencn 10

State v. Poland, 645 P.2d 784 (Ariz., 1982) .......... 10

State v. Wyand, 501 A.2d 43 (Md., 1985) ............ 15

United States v. Baldwin, 621 F.2d 251

(C.A. 6, 1980), cert. denied, 450 U.S.1043 ........ 8

1V

United States v. Goldstein, 611 F. Supp.

OG Cree, Se BOE po cad ted awed een eueewe 9

United States v. Lyons, 706 F.2d 321

Fa Paes ROES 0k wee ewe oy Peed hee ee 9

United States v. Miglietta, 507 F. Supp. 353

CRE Pas RUNS a sas boa oo veeeceeae ane 8

United States v. Novello, 519 F.2d 1078

(C.A. 5, 1975), cert. denied, 423 U.S.1060....... 9

United States v. Osorio de Santiago,

626 F. Supp. (D.P.R. 1986), aff'd 828

een CO A ks as BE cs on eee ee 9

United States v. Scherer, 673 F.2d 176, 182

(C.A. 7, 1982), cert. denied, 457 U.S.1120....... 9

United States v. Schuster, 684 F.2d 744

(C.A. 11, 1982), cert. denied, 465 U.S.1010...... 9

United States v. Shigemura, 682 F.2d 699

(C.A. 8, 1982), cert. denied, 459 U.S.1111....... 9

United States v. Wright (C.A. 8, 1981),

CEL Fe ee ee es ee ee ee a eed 9

V

CONSTITUTIONAE PROVISIONS

Ohio Const. sec. 6, art. XV... 2... ee ee eee ee 12

FEDERAL STATUTES

I.R.C. Sec. 501(cX 8)... 114

Pub. L. 91-452, Title VIII, Sec. 803(a)

10-15-70 Stat. 937 1d

OPEC. SOLOOL. ow ccc cee eset ce cesecssucens

RP RENG, POLLO! ocenccsanssacacecesaas 4,13, 14,15, 16

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

ON PETITION FOR A WRIT OF CERTIORAR

ALA Livi

(O THE SUPREME COURT OF OHIO

JURISDICTION

Respondent agrees with the initial statements concern-

ing this Court’s jurisdiction over this matter. However, as

Petitioner points out in the last paragraph of the Juris-

dictional section, the petition is filed well beyond the

sixty day period set forth in United States Supreme Court

Rule 20.1.

The instant case was argued and submitted to the Ohio

Supreme Court on September 21, 1988, and decided on

December 30, 1988. Because of the retirement of one Jus-

tice, the decision was not released and journalized until

January 30, 1989, when the sixty-day period began to

run. The petition for writ of certiorari should have been

filed on or before March 31, 1989.

Petitioner argues that the amendments to 28 U.S.C.

1257 were discovered beyond the sixty day period.

Respondent notes that the amended 28 U.S.C. 1257

became law on June 27, 1988 with an effective date of

September 25, 1988, over four months before the jour-

nalization of the instant matter by the Ohio Supreme

Court. The ninety-day delay before the effective date, as

well as the four subsequent months, was ample time for

Petitioner to have discovered the amendments.

The March 31, 1989 deadline having long since expired,

and no extension having been granted by this Court, it

would appear that Petitioner’s application for writ of cer-

tiorari is submitted out of rule. Respondent respectfully

urges this Court to deny the petition, if for no other

reason than for its untimely filing.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Respondents rely upon the following constitutional and

statutory provisions:

United States Constitution, Fourth Amendment,

Fourteenth Amendment

Ohio Constitution, Section 6, Article XV

18 U.S.C. 1511

18 U.S.C. 1955

I.R.C. Sec. 501(a)

I.R.C. Sec. 501(c)(3)

I.R.C. Sec. 501(c)(8)

I.R.C. Sec. 501(d)(2)(3)

P.L. 91-452, Title VIII, Sec. 803(a) 10-15-70 Stat. 937

Ohio Revised Code Sec. 2915.01 et seq.

STATEMENT OF FACTS

On May 7, 1986, Detective Ernest Cook, an undercover

Deputy of the Franklin County, Ohio Sheriffs Office, ap-

proached Appellants’ establishment, the Fraternal Order

Eagles Post 3261, accompanied by an authorized

member of the Eagles Lodge. The Eagles Lodge is a non-

profit fraternal organization granted tax-exempt status

inder Section 501(c\(8) of the Internal Revenue Code.

The Internal Revenue Code defines Sec. 501(c)(8) clubs as

fraternal organizations which operate for the exclusive

benefit of the individual members.

The Eagles member, who had previously informed the

undercover detective that she believed illegal gambling

regularly occurred at the Club, knocked on the door to the

Eagles Lodge. The door was immediately opened and the

member and her guest were advised that they may enter

the premises. Although the member exhibited her mem-

bership identification, the record indicates that the

doorkeeper did not look at her identification. Neither the

informant nor her guest were questioned in any manner.

The doorkeeper simply opened the door and invited the

two to enter.

Upon entering the Club, Detective Cook plainly ob-

served evidence of gambling activity. A search warrant

was obtained based on the Detective’s observations and

three citations for violations of Ohio Revised Code Sec.

2915.02 were subsequently issued to Petitioners.

The above-mentioned Ohio Revised Code Section

criminalizes the type of gambling witnessed by Detective

Cook when conducted by any individual or group other

than a charitable organization defined by I.R.C. 501(cX3).

The |.R.C. defines a 501(c)(3) organization as one in

which no part of the net earnings inures to the benefit of

any individual. The Ohio Revised Code Chapter which

criminalizes gambling defines the illegal activity as that

which is designed to produce income for the individual.

Petitioner accurately summarizes the various court

proceedings giving rise to the instant matter.

6

ARGUMENT

I,

A FOURTH AMENDMENT VIOLATION DOES

NOT OCCUR WHEN AN UNDERCOVER

POLICE OFFICER ENTERS A SOCIAL CLUB

AS THE GUEST OF A MEMBER AND OB-

SERVES CRIMINAL ACTIVITY WHICH

FORMS THE BASIS FOR A GAMBLING

CHARGE UNDER STATE LAW.

A. The Ohio Supreme Court correctly concluded that

an undercover officer’s failure to identify himself

does not undermine consent to entry.

The court below correctly determined that “consent

does not lose its status of being freely and voluntarily

given merely because it would not have been given but for

the fact that the other person failed to identify himself as

a police officer or agent.” 534 N.E.2d 61, 40 Ohio St. 3d

420, syllabus. The Ohio court based its decision on a

series of cases issued by this Court. See pages A-13

through A-15 of the Petition. The same series of cases is

examined and this Court’s position summarized in 3 W.

LaFave, Search and Seizure Sec. 8.2(m) (2d ed. 1987). At

page 223 of the LaFave treatise, a conclusion identical to

the lower court’s holding is reached:

when an individual gives consent to another to in-

trude into an area or activity otherwise protected by

the Fourth Amendment, aware that he will thereby

reveal to this other person either criminal conduct or

evidence of such conduct, the consent is not vitiated

merely because it would not have been given but for

the nondiselesure or affirmative misrepresentation

which made the consenting party unaware of the

7

other person’s identity as a police officer or police

agent.

Of the cases relied upon by the court below, Lewis vy.

United States, 385 U.S. 206 (1966), is the most critical to

the analysis of this fact pattern. The court below correctly

recognized that the Lewis case is directly on point and

dispositive. Petitioner argues that the facts presented in

the instant matter differ significantly from the Lewis

case. In Lewis, the defendant invited an undercover

federal narcotics agent into his home, believing the agent

was only an interested drug purchaser. This Court deter-

mined that

a government agent, in the same manner as a

private person, may accept an invitation to do busi-

ness and may enter upon the premises for the very

purposes contemplated by the occupant.

In the case at bar, Petitioner invited the undercover

detective into the Lodge, believing he was a social guest

intending to enjoy the activities available. Once in the

Club, the officer acted precisely as contemplated by the

Lodge. The Ohio Supreme Court, following this Court’s

reasoning in Lewis, held that no violation of the Fourth

Amendment occurred.

As the court below realized, the facts presented in

Lewis are identical to the facts of this case in every

relevant aspect. This Court’s determination in Lew/s was

properly applied by the Ohio Supreme Court. Moreover,

as stated below, the lower court’s decision is also sup-

ported by numerous decisions of other state and federal

courts. The court below correctly decided this issue, and

its determination need not be reviewed by this Court.

Respondent respectfully urges this Court to deny the

Petition.

B. The Opinion of the Ohio Supreme court is not in

conflict with the decision of any state or federal court

and no substantial federal constitutional question is

presented.

Petitioner asserts that “there is a divergence of opinion

in both federal and state courts where government offi-

cials gain entry onto private property by deception as to

the agents’ identity or purpose.” Petition p. 7. In framing

the analysis as stated above, Petitioner fails to make a

distinction which the courts, both state and federal, con-

sistently make in ruling on the validity of a warrantless

consent search. There is a distinct difference between a

consensual entry acquired by a deception as to one’s iden-

tity and an entry obtained by deception as to one’s pur-

pose.

The cases presented by Petitioner in support of his

argument are cases involving deception of both purpose

and identity. The instant matter presents no issue of

deception as to purpose. The undercover deputy in this

case was invited into the Club to participate in all of its

activities, including gambling. Once inside, his activity

conformed precisely with that expected and allowed by

Petitioner.

When presented with fact patterns which parallel those

presented here, numerous courts have found no Fourth

Amendment violation. Respondent is unable to find a

single case decided since this Court’s pronouncement of

Lewis supra, in which any court found that deception as

to identity alone invalidated the consent given. Federal

and state courts unanimously and correctly apply Lewis,

supra, to find no constitutional violation.

In addition to United States v. Baldwin, 621 F.2d 251

(C.A. 6, 1980), cert. denied, 450 U.S. 1043, and United

States v. Migletta, 507 F. Supp. 353 (MD Fla. 1980),

which are cases cited by Petitioner, and United States v.

Goldstein, 611 F. Supp. 624 (N.D. 111. 1985), and United

States v. Osorio de Santiago, 626 F. Supp. 329 (D.P.R.

1986), affd 828 F.2d 866 (C.A. 1, 1987), cases highlighted

by the court below, the Fifth, Seventh, Eighth, Ninth,

Eleventh, and District of Columbia circuits’ have ruled on

the issue presented in this case. In United States v.

Scherer, 673 F.2d 176, 182 (C.A. 7, 1982), cert. denied,

457 U.S. 1120, the Court concluded:

A government agent may obtain an invitation onto

property by misrepresenting his identity, and if in-

vited, does not need probable cause nor warrant to

enter so long as he does not exceed the scope of his

invitation..

In United States v. Wright(C.A. 8, 1981), 641 F.2d 602,

605, the Eighth Circuit upheld the search by undercover

officers and held that consent was knowingly and intel-

ligently given even though the defendant was unaware of

the officers’ identity. The court noted:

The undercover officers did not engage in any con-

duct inconsistent with that expected or contemplated

by appellant when he opened the door.

The various state courts which have decided cases in-

volving an undercover officer’s misrepresentation of iden-

tity are also unanimous in their conclusion that an under-

cover officer’s misrepresentation of identity alone is

' United States v. Novello, 519 F.2d 1078 (C.A. 5, 1975), cert.

denied, 423 U.S. 1060; Ponce v. Green, 409 F.2d 621 (C.A. 9,

1969), cert. denied, 397 U.S. 1012; United States v. Schuster,

684 F.2d 744 (C.A. 11, 1982), cert. denied, 465 U.S. 1010;

United States v. Shigemura, 682 F.2d 699 (C.A. 8, 1982), cert.

denied, 459 U.S. 1111; and United States v. Lyons, 706 F.2d

321 (C.A.D.C., 1983).

10

constitutional. The State of Washington provides a long

series of cases upholding “ruse entries” by police officers.

In the most recent case, a police officer gained entry by

posing as an interested home buyer who, when looking

through the home as an interested buyer would, observed

evidence of criminal activity. State v. Nedergard, 753

P.2d 526 (Wash. App. 1988). The court upheld the entry

as consensual and found no Fourth Amendment viola-

tion.*

In Commonwealth v. Ginter, 423 A.2d 1024 (Pa., 1981),

the Pennsylvania court was faced with a fact pattern vir-

tually identical to the case at bar. In Ginter, an under-

cover liquor agent, posing as the guest of a member-in-

formant, entered a private social club and observed the

illegal sale of liquor. The Pennsylvania court upheld the

search, and found it consensual based upon the Lewis

case."

When dealing with ruse entries, some states have ar-

ticulated an additional requirement that the officer show

some justification to support the entry. Three states

which require the officer to articulate some reasonable

belief that criminal activity is occurring are Iowa, State v.

Ahart, 324 N.W.2d 317 (1982); Michigan, People vy.

Catania, 366 N.W.2d 380 (1985); and Minnesota, State v.

Buchwald, 196 N.W.2d 445 (1972).

Although the court below did not articulate such a re-

quirement, it did note that the undercover detective had

“Other states which have upheld the entrance of a police of-

ficer posing as a home buyer include Alaska, Guidry v. State,

671 P.2d 1277 (1983); Arizona, State v. Poland, 645 P.2d 784

(1982); and New Jersey, State v. Anglada, 365 A.2d 720 (1976).

’Other states upholding consensual entry where the officer

uses deception as to identity, which does not exceed the scope

of the consent, include Indiana, Maynard v. State, 508 N.E.2d

1346 (1987); Louisiana, State v. McCommas, 398 So. 2d 1100

(1981); and Maine, State v. Carey, 417 A.2d 979 (1980).

11

information from the member that some type of gambling

activity was occurring at the Eagles Lodge. Under the

analysis applied by the courts of Iowa, Michigan, and

Minnesota, such information, although perhaps not

specific enough to support the issuance of a search war-

rant, would provide justification for the deceptive entry.

All of the cases cited above parallel the reasoning of the

court below. There is no conflict among the various courts

as to this issue and no need for this Court to grant cer-

tiorari to secure harmony of decisions.

I]

AN EQUAL PROTECTION VIOLATION DOES NOT

OCCUR WHEN A STATE LEGISLATURE CHOOS-

ES TO CRIMINALIZE GAMBLING ACTIVITY BY

CERTAIN SUBCLASSES OF CHARITABLE OR-

GANIZATIONS AND BASES THE PROHIBITIONS

ON RATIONAL DISTINCTIONS FOUND IN THE

INTERNAL REVENUE CODE.

The Ohio Supreme Court set forth the following test for

equal protection analysis based upon this Court’s opinion

in Kadrmas v. Dikinson Pub. Schools, 487 U.S. (1988):

With regard to the application of R.C. 2915.02 to ap-

pellant FOE, no suspect classification is made and no

fundamental right is curtailed. Accordingly, as with

most social and economic legislation, we will uphold

the classifications drawn by the statute if they are

rationally related to a legitimate state interest.

534 N.E.2d 61 & 65, 40 Ohio St. 3d at 425.

In the instant matter, as the court below found, the

relationship between the state interest of prohibiting in-

dividual monetary gain through gambling is rationally re-

lated to the criminalization of gambling by groups whose

income directly inures to the benefit of individual mem-

12

bers. More specifically, the exemption of organizations

legally defined as providing no monetary benefit to in-

dividual members is not contrary to the governmental

objective.

In the State of Ohio, the governmental interest in

regulating gambling activity is very strong and well es-

tablished. At the outset, it should be noted that the Ohio

Constitution specifically prohibits gambling activity

except as permitted by the Legislature. Section 6, Article

XV, provides that “lotteries, and the sale of lottery tick-

ets, for any purpose whatever shall forever be prohibited

in this State.”

In Mills-Jennings, Inc. v. Dept. of Liquor Control

(1982), 435 N.E.2d 407, 70 Ohio St. 2d 95, the Ohio

Supreme Court interpreted the above-reference section,

and emphasized Ohio’s strong public policy against gam-

bling. More importantly, the lower court noted that the

gambling statutes “when being interpreted and enforced,

should not go beyond the specific provisions of the [Ohio]

Criminal Code as revised in 1974 and as subsequently

amended.” Mrl/s-Jennings, supra at 101 (emphasis

added).

The well-established public policy and pronouncements

of the Ohio Supreme Court indicate that, while the legis-

lature may have relaxed the prohibitions against gam-

bling over the years, the legislative intention must be

strictly followed.

The state interest in prohibiting gambling is defined by

the Ohio Legislature in the published committee com-

ments to the House Bill amending Ohio’s gambling laws.

(Appendix A-1.) That comment provides, in -pertinent

part:

The fundamental thrust of new Chapter 2915 is to

prohibit the business of gambling without forbidding

gambling carried on for pleasure rather than profit.

13

Under the chapter, all forms of gambling and ac-

tivities in aid of it are illegal if carried on as a busi-

ness, or for personal profit, or as a significant source

of income or livelihood.

O.R.C. 2915.01(E), set forth by Petitioner at page A-35,

also evidences the legislative purpose. That section

defines a game of chance conducted for profit as one

designed to produce income for the individual person. By

prohibiting games of chance as defined above, the state

objective of curbing individual gain through gambling is

met.

O.R.C. 2915.02(D) sets forth narrowly defined exemp-

tions form prosecution for gambling. In subsection (2b)

of the above referenced statute, the legislature has deter-

mined that a charitable organization may gamble only if

it 1S:

exempt from federal income taxation under subsec-

tion 501(a) and described in subsection 501(ci(3) of

the Internal Revenue Code;

R.C. 2915.02(D\2\b), emphasis added.

R.C. 2915.02(D) clearly manifests the Ohio Legisla-

ture’s intention to prohibit 501(cX8) organizations, such

as Petitioner’s, from gambling. This intention is further

evidenced by the Ohio General Assembly’s repeated

refusal to amend R.C. 2915.02(D). during the 1987-1988

session, the state legislature failed to pass four separate

bills proposing amendments to this subsection.

Petitioner’s argument that the narrowly tailored ex-

emption for 501(cX3) organizations contradicts the stated

governmental interest, is meritless. The Internal

Revenue Code definitions of charitable organizations,

upon which the Ohio gambling statute is founded, reveal

that the objective of prohibiting personal benefit is direct-

14

ly paralleled in the tax code.

The inurement of benefits is the crucial distinction be-

tween 501(cX3) organizations and other 501(c) organiza-

tions. 501(cX8) defines a fraternal order as an organiza-

tion which operates “for the exclusive benefit of the

members of a fraternity itself.” 501(cX3) includes the fol-

lowing:

no part of the net earnings of which inures to the

benefit of any private shareholder or individual.

The purpose of Ohio’s gambling statute reflects this

distinction. R.C. 2915.02 prohibits the use of games of

chance when benefit inures to any individual. By carving

a narrow exception allowing 501(cX3) organizations to

gamble, the legislature did not destroy this purpose or

undermine the strong public policy reasons for curtailing

gambling activity.

A review of federal gambling laws also supports

Respondent’s argument. The federal gambling law, like

our state law, limits the exemption to 501(c)\(3) organiza-

tions. Like R.C. 2915.01(E), 18 U.S.C. 1955(e) defines il-

legal gambling as activity which benefits, or produces

income for, the individual.

18 U.S.C. Section 1955(e) provides the following ex-

emption for charitable organizations:*

(e) This section shall not apply to any bingo game,

lottery, or similar game of chance conducted by an

organization exempt from tax under paragraph (3) of

subsection (c) of section 501 of the Internal Revenue

Code of 1954, as amended, if no part of the gross

receipts derived from such activity inures to the

418 U.S.C. 1511, which makes it illegal for a government

official to conspire to obstruct state or local gambling laws, con-

tains the identical exemption.

15

benefits of any private shareholder, member, or

employee of such organization except as compensa-

tion for actual expenses incurred by him in the con-

duct of such activity.

The legislative history to Pub. L. 91-452, Title VIII,

Sec. 803(a), 10-15-70, Stat. which amended 18 U.S.C. Sec-

tion 1955, explained:

Section 1955(e) excluded from the operation of the

section games of chance conducted by tax exempt or-

ganizations where no part of the gross receipts

inures to the benefit of an individual.

Finally, case law supports the lower court’s conclusion

that the exemption of 501(c\(3) organizations from R.C.

2915.02 proscriptions does not violate the equal protec-

tion clause. To the best of Respondent’s knowledge, only

two courts have dealt specifically with this topic.

Besides the Ohio court in the case at issue, courts for

the states of North Carolina and Maryland have found a

rational nexus and rejected the equal protection claim.

See State v. McCleary, 308 S.E.2d 883 (N.C., 1983) affd

316 S.E.2d 87 (1984), and State v. Wyand, 501 A.2d 43

(Md., 1985).

Petitioner argues that the Ohio laws regulating bingo,

and the laws of other states undermine the rationality of

the nexus between Ohio’s gambling law exemptions and

the governmental interest. In reply, Respondent would

merely point out that other Ohio laws and the laws of

other states cannot impact upon an equal protection

analysis of R.C. 2915.02.

These laws are founded upon completely different state

interests, the creation of which lies strictly within the

province of the various state legislatures.

The Ohio Supreme Court correctly concluded that R.C.

16

2915.02 does not deny equal protection of the law by ex-

empting 501(cX3) organizations from prosecution. The

legislature’s decision to permit gambling only by those or-

ganizations in which no monetary benefit inures to the

individual members, is rationally related to the state’s in-

terest in preventing individuals from earning income

from gambling. Respondent respectfully urges this Court

to deny Petitioner’s application for writ of certiorari.

17

CONCLUSION

For the reasons set forth above, Respondents respect-

fully urge this Court to deny the petition for writ of cer-

tiorari.

Respectfully submitted,

CITY OF COLUMBUS

DEPARTMENT OF LAW

RONALD J. O'BRIEN

CITY ATTORNEY

90 West Broad Street, Room 200

Columbus, Ohio 43215

614/645-7385

COUNSEL OF RECORD FOR

RESPONDENT

MARIA JUSKIW ARMSTRONG

ASSISTANT CITY PROSECUTOR

375 S. High Street, 7th Floor

Columbus, Ohio 43215

614/645-7483

OF COUNSEL

CERTIFICATE OF SERVICE

I, Ronald J. O’Brien, being a member of the Bar of

hereby certify that three copies of this Brief in

‘

this Court, |

T

May 31, 1989, to John A. Connor II, 218 East State

\ ‘ Ol nm Reawan Bae Ah A «yS = be . . swrecte tas lh

Street. Columbus, Ohio 43215. I further certify that

parties required to be served have been served

RONALD J. O'BRIEN

90 West Broad Street, Room

Columbus, Ohio 43215

COUNSEL OF RECORD FOR

ESPONDENT

YO)

R

A\

A-1

APPENDIX

Committee Comment to H 511

The fundamental thrust of new Chapter 2915. is to

prohibit the business of gambling without forbidding

gambling carried on for pleasure rather than profit.

Under the chapter, all forms of gambling and activities

in aid of it are illegal if carried on as a business, or for

personal profit, or as a significant source of income or

livelihood. Otherwise, no form of gambling is illegal.

Gambling in public is prohibited to avoid enforcement

problems, and this represents a partial exception to the

general rule in the chapter.

Cheating as such was not an offense under former law,

but is an offense under Chapter 2915. regardless of

whether the gambling activity in which it occurs is legal

or illegal. For penalty purposes, cheaters are treated

much the same as thieves under new section 2913.02 of

the Revised Code. A simplified version of a former

prohibition against “

cluded in the chapter.

fixing” sporting events is also in-