State v. Flynt , 63 Ohio St. 2d 132 ( 1980 )

Per Curiam.

The law is well settled that the government is subject to constitutional restraints in its choice of those whom it may prosecute. As long ago as Yick Wo v. Hopkins (1886), 118 U.S. 356, 373-74, the United States Supreme Court stated that although a “law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights,” there is a denial of equal protection of the laws.

The conscious exercise of some selectivity in enforcement is not in itself, however, a violation of the United States Constitution. Oyler v. Boles (1962), 368 U.S. 448, 456. In order for selective enforcement to reach the level of unconstitutional discrimination the discrimination must be “intentional or purposeful.” Snowden v. Hughes (1944), 321 U.S. 1, 8. This concept of “intentional or purposeful discrimination” was explained in United States v. Berrios (C.A. 2, 1974), 501 F. 2d 1207, 1211, as follows:

“To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as ‘intentional and purposeful discrimination.’ ” This test has been recognized by numerous courts. See United States v. Murdock (C.A. 5, 1977), 548 F. 2d 599, 600; United States v. Ojala (C.A. 8, 1976), 544 F. 2d 940, 943; United States v. Legget & Platt, Inc. (C.A. 6, 1976), 542 F. 2d 655, 658, certiorari denied, 430 U.S. 945 (1977); United States v. Bourque (C.A. 1, 1976), 541 F. 2d 290, 292-293; United States v. Peskin (C.A. 7, 1975), 527 F. 2d 71, 86, certiorari denied, 429 U.S. 818 (1976); United States v. Scott (C.A. 9, 1975), 521 F. 2d 1188, 1195, certiorari denied, 424 U.S. 955 (1976).

Applying these principles to the instant cause it must be conceded that defendants demonstrated that other magazines with a format similar to Hustler, sold in the same stores as that magazine, were not yet being prosecuted, although the authorities were aware of their existence and general content. There are, however, several legitimate reasons testified to at trial as to why Hustler magazine was chosen as a test case.¹ The prosecutor, for example, testified that while it contained a similar format as other magazines on the market, that some portions of Hustler were more offensive than those in the compared magazines. It was also testified that the prosecution of out-of-state magazines would entail greater difficulties in service of process and extradition. The officers of Hustler, on the other hand, were domiciled in Ohio.

In addition, the defendants did not establish that Hustler alone would be prosecuted. The prosecutor in this cause stated that he did not have the authority to make the decision concerning subsequent prosecutions of other magazines. Testimony from his superiors was necessary to infer that the city of Cleveland would not follow up a successful result in the instant cause with the bringing of additional prosecutions.

The burden on a defendant to show intentional or purposeful discrimination is a heavy one, Berrios, supra, and will not be presumed, Snowden, supra. We hold that the defendants herein did not sustain their burden of establishing a prima facie case of unconstitutional discriminatory prosecution. In order to sustain their burden, the defendants needed to present testimony from those individuals responsible for deciding the intended course of future prosecutions.

Accordingly, the judgment of the Court of Appeals is affirmed.²

Judgment affirmed.

Celebrezze, C. J., Herbert, W. Brown, Sweeney, Locher and Holmes, JJ., concur.

1 The validity of pursuing a test case and its relationship to the doctrine of discriminatory prosecution was explored in the case of People v. Utica Daw’s Drug Co. (1962), 16 A. D. 2d 12, 225 N.Y. Supp. 2d 128, 136, where it was stated:

“Selective enforcement may be justified when the meaning or constitutionality of the law is in doubt and a test case is needed to clarify the law or to establish its validity. Selective enforcement may also be justified when a striking example or a few examples are sought in order to deter other violators, as part of a bona fide rational pattern of general enforcement, in the expectation that general compliance will follow and that further prosecutions will be unnecessary. It is only when the selective enforcement is designed to discriminate against the persons prosecuted, without any intention to follow it up by general enforcement against others, that a constitutional violation may be found.”

2 Implicit in this court’s holding is a rejection of defendants’ contention that the Court of Appeals reversed the trial court’s dismissal of the complaints in the instant cause, based upon an improper determination of the credibility of the witnesses at trial.