G.B v. Nancy H. Rogers Attorney Gen. Of Ohio, Case No. 1:08-cv-437.

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtTIMOTHY S. BLACK, United States Magistrate
Citation703 F.Supp.2d 724
PartiesG.B., Plaintiff,v.Nancy H. ROGERS Attorney General of Ohio, Defendant.
Docket NumberCase No. 1:08-cv-437.
Decision Date31 March 2010

703 F.Supp.2d 724

G.B., Plaintiff,
v.
Nancy H. ROGERS Attorney General of Ohio, Defendant.

Case No. 1:08-cv-437.

United States District Court,
S.D. Ohio,
Western Division.

March 31, 2010.


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COPYRIGHT MATERIAL OMITTED

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Henry Louis Sirkin, Jennifer M. Kinsley, Scott Ryan Nazzarine, Sirkin Kinsley Nazzarine, Cincinnati, OH, for Plaintiff.

Jeffery William Clark, Randall William Knutti, Assistant Attorney General, Court of Claims Defense Section, Christopher P. Conomy, Ohio Attorney General, Columbus, OH, for Defendant.
MEMORANDUM OF OPINION AND ORDER
TIMOTHY S. BLACK, United States Magistrate Judge.

This civil action is currently before the Court on Defendant's motion for summary judgment (Doc. 19), Plaintiff's response in opposition and cross motion for summary judgment (Doc. 21) and Defendant's reply (Doc. 22). The parties have consented to final adjudication by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). ( See Doc. 9).

I. BACKGROUND FACTS

Plaintiff G.B.1 brings this action to challenge the constitutionality of the new sex offender registration scheme under Ohio's Adam Walsh Act (Amended Substitute Senate Bill 10), both on its face and as applied to Plaintiff.

Ohio has had some form of sex offender registry since 1963. Over time, the scope of the registry and associated duties have changed. Most recently, the Ohio General Assembly enacted Amended Substitute Senate Bill 10 (“S.B. 10”), which was signed into law by the Governor on June 30, 2007. S.B. 10 made sweeping changes to Ohio's sex offender registration scheme and enacted new provisions for sex offenders pursuant to the federal Adam Walsh Act. Under S.B. 10, Ohio enacted new definitions and duties for sex offenders and created new duties for certain public officials. S.B. 10 did away with the old Megan's Law scheme and enacted a three-tiered system for classifying offenders based solely on the offense for which they were convicted or pled guilty.

This litigation concerns only a single aspect of S.B. 10: the designation of pandering obscenity as an offense subject to sex offender registration. Before the enactment of S.B. 10, a charge of pandering obscenity under Ohio Rev.Code § 2907.32 2 or an equivalent foreign statute was not a registration offense. S.B. 10 amended Ohio Rev.Code § 2950.01 to define “Tier I sex offender” to include anyone convicted of a violation of Ohio Rev.Code § 2907.32 or the equivalent. S.B. 10 did not enact

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any change to Ohio Rev.Code § 2907.32 itself, or to Ohio's statutory definition of obscenity, Ohio Rev.Code § 2907.01(F). The Tier I sex offender designation for pandering obscenity depends entirely on a conviction under Ohio's existing criminal statute.

Plaintiff is not a registered sex offender and has not been charged with a sex offense. Plaintiff is a manager for Hustler-Cincinnati, Inc., a store that sells “a variety of materials of a sexual nature, including but not limited to video tapes, DVDs, magazines, lotions, massage oils, lingerie, novelties, and other general merchandise.” (Doc. 2 at ¶ 20). Plaintiff alleges that “Hamilton County has a history of aggressively prosecuting sexually explicit materials” ( Id. at ¶ 22), and further alleges that various Hustler outlets have been targeted by such prosecutions. ( Id. at ¶¶ 5, 22). Plaintiff further alleges that she fears facing obscenity charges because her work “may come under unpredictable criminal scrutiny at any moment.” ( Id.)

In addition to her fear of prosecution on charges of pandering obscenity, Plaintiff fears that a conviction would result in her being labeled as a Tier I sex offender and subject her to the corresponding registration duties and other restrictions. (Doc. 2 at ¶¶ 5, 18). She also fears that the label of sex offender would result in social consequences and harassment. ( Id.) Plaintiff does not want to expand the store's product line due to her fear of prosecution and the possible resulting sex offender label. ( Id. at ¶¶ 18, 21). At the heart of her claim is the allegation that “[t]he subjective and ever-evolving definition of obscenity, coupled with Hamilton County's history of censorship and aggressive enforcement of obscenity laws, threatens to limit both the availability of sexually oriented non-obscene materials and the willingness of adults to involve themselves in the sale, distribution, and transportation of sexually oriented non-obscene materials.” ( Id. at ¶ 18). Specifically, S.B. 10's changes to Ohio's sex offender registry scheme may subject Plaintiff to the possibility of being labeled a sex offender.

This Court previously dismissed Plaintiff's privacy claim, finding that there was no privacy interest in public records of convictions for pandering obscenity. Now both Plaintiff and Defendant seek summary judgment on the remaining three claims.

II. STANDARD OF REVIEW
A. Summary Judgment

A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the burden of showing the absence of genuine disputes over facts which, under the substantive law governing the issue, might affect the outcome of the action. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. All facts and inferences must be construed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A party opposing a motion for summary judgment “may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (1986).


B. As Applied/Facial Challenge

Although Plaintiff asserts that she is challenging S.B. 10 “as applied” to her, she

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in fact presents only a facial challenge to the legislation because she is not a registered sex offender and has not been charged with any registration offense. Although she asserts that she fears potential prosecution, there is no actual prosecution at issue. Based on the position of this case and Plaintiff's assertion that she is not engaged in and does not seek to engage in prohibited conduct subject to sex offender registration, there is no “application” of S.B. 10 to challenge.

The Sixth Circuit has explained the difference between facial and as-applied challenges as follows:

A court may hold a statute unconstitutional either because it is invalid “on its face” or because it is unconstitutional “as applied” to a particular set of circumstances. Each holding carries an important difference in terms of outcome: If a statute is unconstitutional as applied, the State may continue to enforce the statute in different circumstances where it is not unconstitutional, but if a statute is unconstitutional on its face, the State may not enforce the statute under any circumstances. Traditionally, a plaintiff's burden in an as applied challenge is different from that in a facial challenge. In an as-applied challenge, “the plaintiff contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional.” Ada v. Guam Soc'y of Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting) denying cert. to 962 F.2d 1366 (9th Cir.1992). Therefore, the constitutional inquiry in an as-applied challenge is limited to the plaintiff's particular situation.

Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir.1997). There is no actual application of S.B. 10 in Plaintiff's “particular situation.” An as-applied challenge only arises where there is an alleged application of the statute “in the particular context in which [the plaintiff] has acted, or in which [s]he proposes to act.” Because Plaintiff does not allege that her store sells obscene materials, there is no application of S.B. 10. It would only apply if Plaintiff were convicted of a registration-qualified offense. Plaintiff does not allege that S.B. 10 applies to her, but that S.B. 10's application to prohibited obscenity has a chilling effect on her conduct. As a result, Plaintiff's challenge to S.B. 10 on overbreadth grounds is only a facial challenge, and it must be addressed under the standard applied to facial challenges.

Recently, the Sixth Circuit expounded on the standard to be used in addressing a facial challenge to the constitutionality of a statute under the First Amendment. Connection Distrib. Co. v. Holder, 557 F.3d 321 (6th Cir.2009). The court emphasized that the burden is on the plaintiff in such a case not only to establish some hypothetical chilling effect, but rather to show that there is “substantial overbreadth.” Id. at 340. The question in the context of a facial challenge is not whether a court can conceive of one or more unconstitutional applications of a statute; it is whether the alleged unconstitutional sweep of the statute is “ substantial ... relative to the statute's plainly legitimate sweep.” Id. at 339-340. “Invalidation for overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’ ” United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 1838, 170 L.Ed.2d 650 (2008). “In order to maintain an appropriate balance, we have vigorously enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep.” Id. The standard to be applied is not whether

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there is “some” overbreadth, but whether the overbreadth is “substantial.” Connection...

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2 practice notes
  • Nale v. Ford Motor Co. Uaw Ret. Plan, No. 09-cv-13401.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • March 31, 2010
    ...benefits. The decision was thus not arbitrary and capricious, nor, perhaps more importantly, was it erroneous as a matter of law.703 F.Supp.2d 724 Finally, Plaintiff has provided no cognizable legal argument to refute this finding. Instead, the remainder of her brief restates the circumstan......
  • Right-Now Recycling, Inc. v. Ford Motor Credit Co., CASE NO.: 1:11-CV-364
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • March 16, 2015
    ...challenges to state statutes relating to liquor sales and citing constitutional standards in Voinovich); G.B. v. Rogers, 703 F. Supp. 2d 724, 728 (S.D. Ohio 2010) (addressing portion of statute concerning the designation of pandering obscenity as an offense subject to sex offender registrat......
2 cases
  • Nale v. Ford Motor Co. Uaw Ret. Plan, No. 09-cv-13401.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • March 31, 2010
    ...benefits. The decision was thus not arbitrary and capricious, nor, perhaps more importantly, was it erroneous as a matter of law.703 F.Supp.2d 724 Finally, Plaintiff has provided no cognizable legal argument to refute this finding. Instead, the remainder of her brief restates the circumstan......
  • Right-Now Recycling, Inc. v. Ford Motor Credit Co., CASE NO.: 1:11-CV-364
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • March 16, 2015
    ...challenges to state statutes relating to liquor sales and citing constitutional standards in Voinovich); G.B. v. Rogers, 703 F. Supp. 2d 724, 728 (S.D. Ohio 2010) (addressing portion of statute concerning the designation of pandering obscenity as an offense subject to sex offender registrat......

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