Hyle v. Porter

• Decision Date: 20 February 2008
• Docket Number: No. 2006-2187.,2006-2187.
• Citation: 2008 Ohio 542,882 N.E.2d 899,117 Ohio St.3d 165
• Parties: HYLE, Appellee, v. PORTER, Appellant.
• Court: Ohio Supreme Court

882 N.E.2d 899

117 Ohio St.3d 165

2008-Ohio-542

HYLE, Appellee, v. PORTER, Appellant.

No. 2006-2187.

Supreme Court of Ohio.

Submitted October 10, 2007.

Decided February 20, 2008.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney; Hyle Mecklenborg Co., L.P.A., and Robert P. Mecklenborg, Cincinnati, for appellee.

Ohio Justice Policy Center, David A. Singleton, and Stephen JohnsonGrove, for appellant.

Rosenthal Institute for Justice, University of Cincinnati College of Law, and Jenny E. Carroll, urging reversal for amici curiae Iowa County Attorneys Association, Iowa Coalition Against Sexual Assault, Iowa State Sheriffs & Deputies Association, Jacob Wetterling Foundation, and Association for the Treatment of Sexual Abusers.

Jeffrey M. Gamso, Toledo, urging reversal for amici curiae American Civil Liberties Union of Ohio Foundation, Inc. and Ohio Association of Criminal Defense Lawyers.

Marc Dann, Attorney General, William P. Marshall, Solicitor General, Stephen P. Carney, Deputy Solicitor, and Frank M. Strigari, Assistant Attorney General, urging affirmance for amicus curiae Attorney General of Ohio.

MOYER, C.J.

{¶ 1} The First District Court of Appeals found its judgment in this case to be in conflict with the judgment of the Second District Court of Appeals in Nasal v. Dover, 169 Ohio App.3d 262, 2006-Ohio-5584, 862 N.E.2d 571, and certified the record to this court for review and final determination. We determined that a conflict exists on the following issue: "Whether R.C. 2950.031 — Ohio's residency-restriction statute prohibiting certain sexually oriented offenders from living within 1,000 feet of a school — can be applied to an offender who had bought his home and committed his offense before July 31, 2003 (the effective date of the statute)." 112 Ohio St.3d 1487, 2007-Ohio-724, 862 N.E.2d 115.

{¶ 2} We hold that R.C. 2950.031 does not apply to an offender who bought his home and committed his offense before the effective date of the statute. The judgment of the First District Court of Appeals is reversed.

I

{¶ 3} Appellant Gerry R. Porter Jr. was convicted of sexual imposition in 1995 and of sexual battery in 1999. The Court of Common Pleas of Hamilton County entered an order determining that Porter was a sexually oriented offender. Porter subsequently registered as a sexually oriented offender.

{¶ 4} In 2003, the General Assembly imposed residency restrictions on certain sexually oriented offenders through the enactment of R.C. 2950.031, later amended and recodified as R.C. 2950.034.¹ Former R.C. 2950.031(A) provides as follows: "No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to either a sexually oriented offense that is not a registration-exempt sexually oriented offense or a child-victim oriented offense shall establish a residence or occupy residential premises within one thousand feet of any school premises." 150 Ohio Laws, Part IV, 6657.

{¶ 5} Following the enactment of former R.C. 2950.031, Francis M. Hyle, the chief legal officer of Green Township in Hamilton County, Ohio, initiated the current action against Porter. Hyle alleged that Porter had been convicted of a sexually oriented offense that was not registration-exempt and that Porter's residence in Cincinnati was within 1,000 feet of the premises of a school, in violation of R.C. 2950.031. Hyle sought a permanent injunction that would enjoin Porter from continuing to occupy his residence. Porter and his wife, Amanda Porter, had co-owned and lived in the house since 1991.

{¶ 6} The trial court permanently enjoined Porter from occupying his home. The First District Court of Appeals affirmed the trial court decision and held that R.C. 2950.031 could be applied to an offender who bought his home and committed his offense before the effective date of the statute. Hyle v. Porter, 170 Ohio App.3d 710, 2006-Ohio-5454, 868 N.E.2d 1047. Upon motion for reconsideration, and in response to the release of the decision in Nasal v. Dover, 169 Ohio App.3d 262, 2006-Ohio-5584, 862 N.E.2d 571, the court of appeals sua sponte certified its judgment as being in conflict with Nasal, and we agreed to resolve the conflict.

II

{¶ 7} We are once again required to apply two provisions of Ohio law that limit the retroactive² application of statutes. The first is the rule of statutory construction, adopted in R.C. 1.48: "A statute is presumed to be prospective in its operation unless expressly made retrospective." See Van Fossen v. Babcock Wilcox Co. (1988), 36 Ohio St.3d 100, 105, 522 N.E.2d 489. The second is a rule of constitutional limitation, imposed in Section 28, Article II of the Ohio Constitution: "The general assembly shall have no power to pass retroactive laws * * *." See Van Fossen, id. A retroactive statute is unconstitutional if it retroactively impairs vested substantive rights, but not if it is merely remedial in nature. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 9.

{¶ 8} In Consilio, we applied these two provisions in the form of a two-part test to determine whether a statute may be applied retroactively. Id. at ¶ 10. Under this test, we first ask whether the General Assembly expressly made the statute retroactive. Id. If it did, then we determine whether the statutory restriction is substantive or remedial in nature. Id. The first part of the test determines whether the General Assembly "expressly made [the statute] retroactive," as required by R.C. 1.48; the second part determines whether it was empowered to do so. Van Fossen, 36 Ohio St.3d at 106, 522 N.E.2d 489.

{¶ 9} We do not address the question of constitutional retroactivity unless and until we determine that the General Assembly expressly made the statute retroactive. Id.; State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, 772 N.E.2d 1172, ¶ 14; Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 10. "[N]o constitutional question is ripe for judicial review `where the case can be disposed of upon other tenable grounds.'" Van Fossen, 36 Ohio St.3d at 105, 522 N.E.2d 489, quoting Ireland v. Palestine, Braffetsville, New Paris, & New Westville Turnpike Co. (1869), 19 Ohio St. 369, 373.

{¶ 10} We therefore begin our retroactivity analysis with the question of statutory interpretation. Pursuant to R.C. 1.48, if the statute is silent on the question of its retroactive application, we must apply it prospectively only. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 40. In order to overcome the presumption that a statute applies prospectively, a statute must "clearly proclaim" its retroactive application. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, paragraph one of the syllabus. Text that supports a mere inference of retroactivity is not sufficient to satisfy this standard; we cannot infer retroactivity from suggestive language. Id.

{¶ 11} Two arguments are advanced in support of the proposition that R.C. 2950.031 was expressly made retroactive. Both concern the language of the statute. First, Hyle notes that the description of convicted sex offenders uses contrasting verb tenses, past and present: "No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to [specified categories of sexual offenses] * * *." (Emphasis added.) Former R.C. 2950.031(A). Hyle argues that the use of these two contrasting verb tenses, including one in a form of the past tense, indicates that the statute applies to convictions before and after the effective date of the statute.

{¶ 12} Second, amicus curiae Attorney General of Ohio notes that the statute's description of prohibited acts includes the verb "occupy," which he argues denotes "continue to occupy": "No person * * * shall establish a residence or occupy residential premises within one thousand feet of any school premises." In particular, the attorney general argues that the two different verbs in the above passage — "shall establish a residence" and "occupy residential premises" — denote two different prohibited activities, and that unless the term "occupy" is interpreted to mean "continue to occupy," the phrases "shall establish a residence and occupy residential premises" are redundant. The attorney general thus argues that the statute applies to an offender who purchased his home before the effective date of the statute as well as to an offender who purchased his home after the effective date of the statute.

{¶ 13} On review of the text of R.C. 2950.031, we find that neither the description of convicted sex offenders nor the description of prohibited acts includes a clear declaration of retroactivity. Although we acknowledge that the language of R.C. 2950.031 is ambiguous regarding its prospective or retroactive application, we emphasize that ambiguous language is not sufficient to overcome the presumption of prospective application. The language in R.C. 2950.031 presents at best a suggestion of retroactivity, which is not sufficient to establish that a statute applies retroactively.

{¶ 14} Two previous cases serve as examples of clear expressions of retroactivity and underscore the absence of a comparable declaration in former R.C. 2950.031.

{¶ 15} In Van Fossen, we based our finding of a clearly expressed legislative intent for former R.C. 4121.80 to apply retroactively on the following passage: "This section applies to and governs any action * * * pending in any court on the effective date of this section * * * notwithstanding any provisions of any prior statute or rule of law of this state." Former R.C. 4121.80(H), 141 Ohio Laws, Part I, 736-737. Van Fossen, 36 Ohio St.3d at 106, 522 N.E.2d 489.

{¶ 16} In State v. Cook (1998), 83 Ohio St.3d 404, 700 N.E.2d 570, our finding that the General Assembly specifically made R.C. 2950.09 retroactive was based in part on an express provision...