The State of Ohio v. BODYKE

• Decision Date: 03 June 2010
• Docket Number: No. 2008-2502.,2008-2502.
• Citation: 2010 Ohio 2424,933 N.E.2d 753,126 Ohio St.3d 266
• Parties: The STATE of Ohio, Appellee, v. BODYKE et al., Appellants.
• Court: Ohio Supreme Court

126 Ohio St.3d 266

933 N.E.2d 753

2010 Ohio 2424

The STATE of Ohio, Appellee,

v.BODYKE et al., Appellants.

No. 2008-2502.

Supreme Court of Ohio.

Submitted Nov. 4, 2009.

Decided June 3, 2010.

COPYRIGHT MATERIAL OMITTED.

Syllabus of the Court

1. The power to review and affirm, modify, or reverse other courts' judgments is strictly limited to appellate courts. (Section 3(B)(2), Article IV, Ohio Constitution, applied.)

2. R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders who have already been classified by court order under former law, impermissibly instruct the executive branch to review past decisions of the judicial branch and thereby violate the separation-of-powers doctrine.

3. R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders whose classifications have already been adjudicated by a court and made the subject of a final order, violate the separation-of-powers doctrine by requiring the opening of final judgments.

Russell V. Leffler, Huron County Prosecuting Attorney, for appellee.

Gamso, Helmick & Hoolahan and Jeffrey M. Gamso, Toledo; and Hiltz, Wiedemann, Allton & Koch Co., L.P.A., and John D. Allton, Norwalk, for appellants.

Jones Day, Elizabeth C. Radigan, Columbus, and Louis A. Chaiten, Cleveland, urging reversal for amici curiae Iowa Coalition Against Sexual Assault, Association for the Treatment of Sexual Abusers, Jacob Wetterling Resource Center, Detective Robert A. Shilling, California Coalition Against Sexual Assault, Texas Association Against Sexual Assault, and National Alliance to End Sexual Violence.

Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin and Cullen Sweeney, Assistant Public Defenders, urging reversal for amicus curiae Cuyahoga County Public Defender.

Ian N. Friedman & Assoc., L.L.C., and Ian N. Friedman, Cleveland, urging reversal for amicus curiae Ohio Association of Defense Lawyers.

Timothy Young, Ohio Public Defender, and Kelly K. Curtis and Katherine A. Szudy, Assistant Public Defenders, urging reversal for amicus curiae Ohio Public Defender.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Mary H. McGrath, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Cuyahoga County Prosecuting Attorney.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, urging affirmance for amicus curiae state of Ohio.

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, Alexandra T. Schimmer, Chief Deputy Solicitor General, David M. Lieberman, Deputy Solicitor, Christopher P. Conomy, Assistant Solicitor, and James A. Hogan, urging affirmance for amicus curiae Ohio Attorney General.

O'CONNOR, J.

{¶ 1} In this appeal, ¹ we decide the constitutionality of the current version of R.C. Chapter 2950, as amended by 2007 Am.Sub.S.B. No. 10 (“the Adam Walsh Act” or “the AWA”), as those provisions apply to sex offenders whose cases were adjudicated prior to its enactment.

{¶ 2} Although we discharge our duty with great respect for the role of the legislature, Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 159, 83 S.Ct. 554, 9 L.Ed.2d 644, for the reasons that follow we are compelled to find that R.C. 2950.031 and 2950.032, the reclassification provisions in the AWA, are unconstitutional because they violate the separation-of-powers doctrine. As a remedy, we strike R.C. 2950.031 and 2950.032, hold that the reclassifications of sex offenders by the attorney general are invalid, and reinstate the prior judicial classifications of sex offenders.

I. Relevant Background

A. R.C. Chapter 2950

{¶ 3} R.C. Chapter 2950, Ohio's law governing the registration and classification of sex offenders and the ensuing community-notification requirements, has evolved substantially since its inception in 1963. See former R.C. Chapter 2950, 130 Ohio Laws 669. The original version of the statute was seldom used, Sears v. State, Clermont App. No. CA2008-07-068, 2009-Ohio-3541, 2009 WL 2140032, ¶ 23, and it existed without amendment for three decades.

{¶ 4} In 1994, however, a convicted sex offender in New Jersey abducted, raped, and killed a neighbor's young child, Megan Kanka. See State v. Williams (2000), 88 Ohio St.3d 513, 516, 728 N.E.2d 342; State v. Cook (1998), 83 Ohio St.3d 404, 405, 700 N.E.2d 570. In the wake of that notorious crime, New Jersey gained national recognition by enacting a law requiring registration of sex offenders and notification to the community of the offender's presence. The law became known as “Megan's Law.” Wallace v. State (Ind.2009), 905 N.E.2d 371, 374. The constitutionality of the New Jersey legislation was upheld by the New Jersey Supreme Court in Doe v. Poritz (1995), 142 N.J. 1, 662 A.2d 367.

{¶ 5} Federal legislation followed later that year when Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Section 14071, Title 42, U.S.Code (“the Jacob Wetterling Act”). The Jacob Wetterling Act focused on requiring states to implement a registry of sex offenders and those who commit crimes against children. People v. Cintron (2006), 13 Misc.3d 833, 836, 827 N.Y.S.2d 445, fn. 6. Two years after its enactment, the Act was amended to require that states add community-notification provisions. Id. The Jacob Wetterling Act then became better known as the federal “Megan's Law.” Id.

{¶ 6} The federal Megan's Law mandates that the states adopt registration and community-notification provisions governing sex offenders or face the loss of federal crime-control funds. Section 14071, Title 42, U.S.Code. The General Assembly enacted Ohio's version of Megan's Law in 1996. Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, 2601. ²

1. Ohio's Megan's Law

{¶ 7} Megan's Law repealed prior versions of R.C. Chapter 2950 and created Ohio's first comprehensive registration and classification system for sex offenders. 146 Ohio Laws, Part II, 2560. In order to accomplish its goals, Ohio's Megan's Law provided for offender registration, classification, and community notification. Cook, 83 Ohio St.3d at 407, 700 N.E.2d 570.

{¶ 8} In 1997, we unanimously upheld the application of Megan's Law over retroactivity and ex post facto claims. ³ State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570.

{¶ 9} After Cook, we addressed constitutional challenges to Megan's Law based on theories other than ex post facto and retroactivity. We rejected, unanimously, the suggestions that Megan's Law impermissibly intruded on the individual's rights to maintain privacy, to acquire property, to pursue an occupation, and to maintain a favorable reputation. Williams, 88 Ohio St.3d at 524-527, 728 N.E.2d 342. We also rejected arguments based on double jeopardy, bill of attainder, equal protection, and vagueness. Id. at 528-534.

{¶ 10} The following year, we were confronted with a separation-of-powers argument in State v. Thompson (2001), 92 Ohio St.3d 584, 752 N.E.2d 276. We rejected it unanimously.

{¶ 11} Thompson addressed whether former R.C. 2950.09(B)(2) violated “the separation-of-powers doctrine because it encroache[d] upon the judiciary's fact-finding authority.” Id. at 585. More specifically, we addressed the language in former R.C. 2950.09(B)(2) that required a judge to consider certain factors before determining whether an offender was a sexual predator.

{¶ 12} Our conclusion that the separation-of-powers doctrine was not violated turned on our view that the statute did not divest the court of its fact-finding powers. Id., 92 Ohio St.3d at 587-588. We observed that the statutory factors provided an important framework that assisted judges in making the sexual-predator determination and that the factors, as guidelines, “provide consistency in the reasoning process.” Id. at 587. But more importantly, we recognized that the guidelines did not control the judge's discretion or require a judge to assign a particular weight to certain factors. Thus, we found no improper interference with the judge's fact-finding powers.

{¶ 13} We further held that the factors themselves were nonexhaustive, because the statute directed the judge to “consider all relevant factors, including, but not limited to,” the statutory factors. (Emphasis deleted.) Id. at 588. Thus, we concluded, the statute did not violate the separation-of-powers doctrine, because the judge retained discretion to consider any relevant evidence and to determine what weight, if any, to assign to that evidence. Id.

{¶ 14} Ten years after our decision in Cook, we again addressed Megan's Law in State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110. In that case, a convicted rapist classified as a sexual predator challenged the constitutionality of the amendments enacted in Am.Sub.S.B. No. 5 (“S.B. 5”), 150 Ohio Laws, Part IV, 6558, 6687-6702 (eff. July 31, 2003). The claims in Ferguson renewed the challenge against the retroactive application of the amended requirements.

{¶ 15} Despite the significant changes wrought by S.B. 5, we upheld the S.B. 5 amendments. In so doing, we rejected Ferguson's assertions that the amendments violated the Ex Post Facto Clause of the United States Constitution (Section 10, Article I) and the retroactivity provision in Section 28, Article II of the Ohio Constitution. We relied on our decision in Cook, the Supreme Court's decision in Smith v. Doe (2003), 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164, and other state courts' decisions to find that Megan's Law remained a remedial statute. Ferguson at ¶ 29-40. Ferguson, however, was not unanimous. See also State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264 (holding that an appellate court must review a trial court's determination in a sex-offender-classification hearing under the civil manifest-weight-of-the-evidence standard).

{¶ 16} The dissent in Ferguson criticized the majority's reliance on Cook: “R.C. Chapter 2950...