State v. Wilson - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE OF OHIO, APPELLANT, V. WILSON, APPELLEE
[Cite as State v. Wilson (1997), _____ Ohio St.3d _____.]
Statutes -- Determining scope of an "existing sections" repeal.

(No. 95-2341 -- Submitted October 15, 1996 -- Decided January 22,
1997.)
In determining the scope of an "existing sections" repeal, a court need only
look to the body of an enrolled Act to which that repealer applies.
Matter to be affected by an "existing sections" repeal must appear in the
body of the enrolled Act and must be stricken through.
Appeal from the Court of Appeals for Hamilton County, No. C-950038.

The defendant-appellee, Anthony Wilson, entered a plea of no contest
for assault, a violation of R.C. 2903.13. The indictment under which Wilson
was charged alleged that he caused or attempted to cause physical harm to a
police officer while that officer was performing his official duties. The trial
court found that the offense as charged constituted a fourth-degree felony and
sentenced Wilson to a one-year term of imprisonment.

Wilson appealed, urging that the offense as charged could constitute no
greater than a first-degree misdemeanor. The appellate court reversed the trial
court and remanded the case for resentencing, concluding that at the time
Wilson was sentenced,1 the version of R.C. 2903.13 in effect did not authorize
a felony conviction for an assault on a police officer performing his or her
official duties.
The cause is now before this court upon the allowance of a discretionary
appeal.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and L. Susan
Laker, Assistant Prosecuting Attorney, for appellant.

Dennis R. Lapp, for appellee.

Judith Stevenson, Franklin County Public Defender, Paul Skendalas and
David L. Strait, Assistant Public Defenders, urging affirmance for amicus
curiae, Franklin County Public Defender.

Gold, Rotatori & Schwartz Co., L.P.A., and John S. Pyle, urging
affirmance for amicus curiae, Ohio Association of Criminal Defense Lawyers.

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Frederick D. Puckett, William Michael Burns and Michael S. Franczak,
urging reversal for amicus curiae, Ohio Legislative Service Commission.

COOK, J. In this appeal we analyze how the General Assembly
contemporaneously effects multiple, unrelated amendments to a single statutory
section while complying with Section 15(D), Article II of the Ohio
Constitution, requiring that "the section or sections amended shall be
repealed."

In May 1994, the General Assembly enacted a new law making assaults
on law enforcement officers a felony.2 This new law amended R.C. 2903.13.
Two days later, the General Assembly passed another Act changing
terminology used throughout the Revised Code from "penal or reformatory
institution" to "correctional institution."3 This second enactment affected a
multitude of sections of the Revised Code, including R.C. 2903.13. The
amendment to R.C. 2903.13 in the earlier Act making assaults on law
enforcement officers a felony, however, was not reflected in this later
enactment. The bills encompassed separate subjects. Both bills included

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standard language stating that "existing section[] *** 2903.13 *** of the
Revised Code [is] hereby repealed." (Emphasis added.)

The ultimate question in this case is what "existing section" of R.C.
2903.13 is repealed by the later enacted law. If the later enactment repealed the
change incorporated in the law passed two days earlier, making assaults on law
enforcement officers a felony, then the trial court here was without authority to
classify Wilson's offense as a fourth-degree felony. We conclude, however,
that the "existing sections" repeal contained in the later enacted law was
limited in scope so as not to effect a repeal of the amendment to R.C. 2903.13
instituted in the earlier Act. Accordingly, we reverse the judgment of the
appellate court and reinstate the original conviction.

As noted in Cox v. Ohio Dept. of Transp. (1981), 67 Ohio St.2d 501, 21
O.O.3d 313, 424 N.E.2d 501, the legislature has long used "existing sections"
language as part of a standard form of repealing clause for the purpose of
complying with Section 15(D), Article II of the Ohio Constitution. Cox,
however, is not dispositive of this case. In Cox, this court examined the issue

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of the effective date rather than the scope of an "existing sections" repeal. The
enactment in Cox became effective on one date, yet included language delaying
the accordant changes to the Revised Code one year from the effective date of
the Act. The question, then, was when the "existing sections" repeal was to
take effect. This court found that the "existing sections" repeal of the statute in
controversy did not come into operation until its concomitant amendment
became effective. Unlike our case today, Cox did not involve intervening
revisions to a statute, and thus fails to bear on the scope of an "existing
sections" repeal.

In determining the proper scope of an "existing sections" repeal, we use
the rules of statutory construction. The primary goal of statutory construction
is to give effect to the intent of the legislature. Carter v. Youngstown (1946),
146 Ohio St. 203, 32 O.O. 184, 65 N.E.2d 63, paragraph one of the syllabus. It
is a basic tenet of statutory construction that "the General Assembly is not
presumed to do a vain or useless thing, and that when language is inserted in a
statute it is inserted to accomplish some definite purpose." State ex rel.

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Cleveland Elec. Illum. Co. v. Euclid (1959), 169 Ohio St. 476, 479, 8 O.O.2d
480, 482, 159 N.E.2d 756, 759.

In reviewing a statute, a court cannot pick out one sentence and
disassociate it from the context, but must look to the four corners of the
enactment to determine the intent of the enacting body. MacDonald v. Bernard
(1982), 1 Ohio St.3d 85, 89, 1 OBR 122, 125, 438 N.E.2d 410, 413. Here, to
determine the meaning of the term "existing sections," we refer to the form of a
legislative enactment as prescribed by R.C. 101.52. That section requires a bill
to be printed for enrollment4 in the exact language in which it was passed, with
"[n]ew matter *** indicated by capitalization and old matter omitted by
striking through such matter." Id. Language unaltered by the amendment
remains in regular type. Accordingly, the enrolled Act permits a comparison of
the amended statutory section and the section that it is intended to replace.

In looking to the face of a statute or Act to determine legislative intent,
significance and effect should be accorded to every word, phrase, sentence and
part thereof, if possible. Wachendorf v. Shaver (1948), 149 Ohio St. 231, 36

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O.O. 554, 78 N.E.2d 370, paragraph five of the syllabus; R.C. 1.47(B). Thus,
the use of the term "existing" must be given effect. Inclusion of that term as a
modifier is meaningful in light of R.C. 101.52. In determining the scope of an
"existing sections" repeal, a court need only look to the body of an enrolled Act
to which that repealer applies. Matter to be affected by an "existing sections"
repeal must appear in the body of the enrolled Act and must be stricken
through. R.C. 101.52. The legislature outlines what it intends to repeal by
compliance with R.C. 101.52. Accordingly, in this case, had the legislature
intended to repeal the earlier Act's amendment making assaults on law
enforcement officers a felony, the later Act, as enrolled, should have contained
that amendment and the language of that amendment should have been stricken
through.

The amendment making assaults on law enforcement officers a felony is
absent from the version of that statute found in the later enacted law. As such,
the "existing sections" repealer found in the later Act did not repeal the R.C.
2903.13 amendment making assaults on law enforcement officers a felony.

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Absent such a repeal, there is nothing to suggest that the amendment to R.C.
2903.13 making assaults on law enforcement officers a felony is irreconcilable
with the later amendment, which modernizes terminology used in that section.5
We therefore conclude that the classification of Wilson's sentence as a fourth-
degree felony was appropriate.

This case is particularly illustrative of the illogical results that may flow
from treating an "existing sections" repeal in the same manner as an outright
repeal. The bills in question passed both houses of the General Assembly
within two days of each other. Neither bill was the existing law at the time the
other passed the General Assembly, as neither had been approved by the
Governor or achieved the requisite period of gubernatorial inactivity to become
law. Accordingly, the legislature could not have intended a repeal of that
which had not yet become law on a presumption that the Governor would not
exercise his veto power. Likewise, it would be equally illogical to presume
that two bills, winding through the General Assembly at roughly the same time,

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passed both houses despite the fact that one did little more than neutralize the
other.

In light of the foregoing, we reverse the judgment of the court of appeals
and reinstate the defendant's felony conviction.

Judgment reversed.

MOYER, C.J., F.E. SWEENEY, PFEIFER and STRATTON, JJ., concur.

DOUGLAS and RESNICK, JJ., concur in judgment only.

FOOTNOTES:

1. Wilson was sentenced on January 5, 1995, well after the effective
dates of both Acts under consideration.

2. Am.Sub.S.B. No. 116, 145 Ohio Laws 1089-1091. (Passed on May 24,
1994; approved by the Governor on June 30, 1994; effective September 29,
1994.)

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3. Am.Sub.H.B. No. 571, 145 Ohio Laws 6342, 6390. (Passed on May
26, 1994; approved by the Governor on July 7, 1994; effective October 6,
1994.)

4. R.C. 1.53 indicates that the language employed in an enrolled Act is a
superior indication of legislative intent, in that, in event of conflict, its
language prevails.

5. R.C. 1.52(B) states:

"If amendments to the same statute are enacted at the same or different
sessions of the legislature, one amendment without reference to the other, the
amendments are to be harmonized, if possible, so that effect may be given to
each. If the amendments are substantively irreconcilable, the latest in date of
enactment prevails. The fact that a later amendment restates language deleted
by an earlier amendment, or fails to include language inserted by an earlier
amendment, does not itself make the amendments irreconcilable. Amendments
are irreconcilable only when changes made by each cannot reasonably be put
into simultaneous operation."
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