State v. Williams , 2011 Ohio 3374 ( 2011 )

[Cite as State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374.]
THE STATE OF OHIO, APPELLEE, v. WILLIAMS, APPELLANT.
[Cite as State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374.]
Criminal law — Sex-offender registration — 2007 Am.Sub.S.B. No. 10, as applied
to defendants who committed sex offenses prior to its enactment, violates
Section 28, Article II of the Ohio Constitution, which prohibits the
General Assembly from passing retroactive laws.
(No. 2009-0088 — Submitted March 1, 2011 — Decided July 13, 2011.)
APPEAL from the Court of Appeals for Warren County,
No. CA2008-02-029, 2008-Ohio-6195.
__________________
SYLLABUS OF THE COURT
2007 Am.Sub.S.B. No. 10, as applied to defendants who committed sex offenses
prior to its enactment, violates Section 28, Article II of the Ohio
Constitution, which prohibits the General Assembly from passing
retroactive laws.
__________________
PFEIFER, J.
Factual and Procedural Background
{¶ 1} In November 2007, appellant, George Williams, was indicted for
unlawful sexual contact with a minor, a felony of the fourth degree under R.C.
2907.04. The indictment stated that Williams, “being eighteen years of age or
older, did engage in sexual conduct with another, not the spouse of the offender,
when the offender knows such other person is thirteen years of age or older but
less than sixteen years of age, or the offender is reckless in that regard.” Williams
pleaded guilty in open court. During the plea colloquy, the trial court twice stated
that Williams’s conviction would not subject him to reporting requirements.
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{¶ 2} Williams subsequently moved to be sentenced under the version of
R.C. Chapter 2950 in effect at the time that he committed the offense. He argued
that major changes to R.C. Chapter 2950 took effect on January 1, 2008, and that
“[t]he sentencing law and reporting law that should apply to the Defendant is the
law that was in effect at the time of the criminal conduct and at the time of the
plea.” The state opposed the motion, arguing that Williams could not point to any
basis for his motion or any justification for the trial court to ignore the law,
because none existed. The trial court denied the motion.
{¶ 3} At his sentencing hearing, Williams was informed that he would be
designated a Tier II sex offender under the current version of R.C. Chapter 2950,
2007 Am.Sub.S.B. No. 10 (“S.B. 10”). The judge ordered Williams to register in
person in the county in which he resided, in the county in which he was being
educated, and in the county in which he was employed, to “provide written notice
within three days of any change of vehicle information, e-mail addresses, Internet
identifiers or telephone numbers,” and to verify the addresses “for a period of 25
years with in person verification every 180 days.” See R.C. 2950.04, 2950.05,
2950.06(B)(2), and 2950.07(B)(2).
{¶ 4} On appeal, Williams argued that the provisions of S.B. 10 cannot
constitutionally be applied to a defendant whose offense occurred before July 1,
2007. The court of appeals disagreed and affirmed the decision of the trial court,
concluding that “the classification and registration provisions of Senate Bill 10 do
not violate the Ohio Constitution’s ban on retroactive laws.” State v. Williams,
12th Dist. No. CA2008-02-029, 2008-Ohio-6195, ¶ 112.
{¶ 5} We accepted Williams’s discretionary appeal. State v. Williams,
121 Ohio St.3d 1449, 2009-Ohio-1820, 904 N.E.2d 900.
Analysis
S.B. 10
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{¶ 6} S.B. 10 is one step of an evolution in the treatment of convicted
sex offenders in the state of Ohio. See State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, 933 N.E.2d 753, ¶ 3-28. Because the issue before us is narrow,
it is not necessary to again discuss that history.
{¶ 7} The statutory scheme for the classification and registration of sex
offenders in effect at the time Williams committed the offense and when he
entered his plea, Ohio’s version of the federal Megan’s Law, Section 14071, Title
42, U.S.Code, was enacted in 1996, Am.Sub.H.B. No. 180, 146 Ohio Laws, Part
II, 2560, and was significantly amended in 2003 by Am.Sub.S.B. No. 5 (“S.B.
5”), 150 Ohio Laws, Part IV, 6558. The current statutory scheme, S.B. 10, was
enacted in 2007, and is based on the federal Adam Walsh Act, Section 16901 et
seq., Title 42, U.S.Code. The classification scheme for sex offenders changed
under S.B. 10: an offender is now subject to additional reporting and registration
requirements and is subject to those requirements for a longer time. See Bodyke
at ¶ 24-28. The issue before us is whether these changes, when applied to a
person whose crime was committed prior to the enactment of S.B. 10, violate the
prohibition against ex post facto laws contained in Section 10, Article I of the
United States Constitution or the prohibition against retroactive laws contained in
Section 28, Article II of the Ohio Constitution. Because we conclude that S.B. 10
violates the Ohio Constitution, we need not discuss whether S.B. 10 also violates
the United States Constitution.
Prohibition against retroactive laws
{¶ 8} Section 28, Article II of the Ohio Constitution states that “[t]he
general assembly shall have no power to pass retroactive laws.” When analyzing
whether a statute is unconstitutionally retroactive, we use a two-part test. Hyle v.
Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, ¶ 7-9. In the first
part of the test, we “ask whether the General Assembly expressly made the statute
retroactive.” Id. at ¶ 8. See Van Fossen v. Babcock & Wilcox Co. (1988), 36
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Ohio St.3d 100, 522 N.E.2d 489, paragraph one of the syllabus (“The issue of
whether a statute may constitutionally be applied retrospectively does not arise
unless there has been a prior determination that the General Assembly specified
that the statute so apply”). R.C. 2950.03, for example, imposes registration
requirements for offenders sentenced on or after January 1, 2008, regardless of
when the offense was committed. Because this portion of S.B. 10 was intended to
apply retroactively, we now turn to the second part of the test, which requires us
to determine whether the statutory provisions are substantive or remedial. Hyle at
¶ 8. See also State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d
1167, ¶ 10.
{¶ 9} In Pratte v. Stewart, 125 Ohio St.3d 473, 2010-Ohio-1860, 929
N.E.2d 415, ¶ 37, we stated that “[i]t is well established that a statute is
substantive if it impairs or takes away vested rights, affects an accrued substantive
right, imposes new or additional burdens, duties, obligations, or liabilities as to a
past transaction, or creates a new right. Van Fossen, 36 Ohio St.3d at 107, 522
N.E.2d 489. Remedial laws, however, are those affecting only the remedy
provided, and include laws that merely substitute a new or more appropriate
remedy for the enforcement of an existing right.” See Bielat v. Bielat (2000), 87
Ohio St.3d 350, 352-353, 721 N.E.2d 28, quoting Miller v. Hixson (1901), 64
Ohio St. 39, 51, 59 N.E. 749 (“The retroactivity clause nullifies those new laws
that ‘reach back and create new burdens, new duties, new obligations, or new
liabilities not existing at the time [the statute becomes effective]’ ” [bracketed
material sic]).
S.B. 5 v. S.B. 10 and remedial v. punitive
{¶ 10} This court has consistently held that “R.C. Chapter 2950 is a
remedial statute.” State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896
N.E.2d 110, ¶ 29. We have also stated, “There is no absolute test to determine
whether a retroactive statute is so punitive as to violate the constitutional
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prohibition against ex post facto laws; such a determination is a ‘matter of
degree.’ ” State v. Cook (1998), 83 Ohio St.3d 404, 418, 700 N.E.2d 570. In
Cook, we examined the guideposts listed in Kennedy v. Mendoza-Martinez
(1963), 372 U.S. 144, 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644, for determining
whether a statute is punitive and concluded that “R.C. Chapter 2950 serves the
solely remedial purpose of protecting the public.” Cook at 423.
{¶ 11} After Cook was issued, R.C. Chapter 2950 was amended by S.B. 5.
This court again concluded that despite the changes effected by S.B. 5, R.C.
Chapter 2950 was a remedial statute. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-
4824, 896 N.E.2d 110, at ¶ 43. Some factors pertaining to the statutory scheme
governing sex offenders, however, suggested that the statutory scheme was
punitive. First, the procedures for registration and classification of sex offenders
were placed within Ohio’s criminal code, R.C. Title 29. Second, failure to
comply with certain registration requirements subjected a sex offender to criminal
prosecution. R.C. 2950.99.
{¶ 12} In a dissent in Ferguson, Justice Lanzinger wrote as follows:
{¶ 13} “Although the majority continues to rely on State v. Cook (1998),
83 Ohio St.3d 404, 409, 700 N.E.2d 570, the first case that considered retroactive
application of R.C. 2950.09(B), R.C. Chapter 2950 has been amended. The
simple registration process and notification procedures are now different from
those considered in Cook and in State v. Williams (2000), 88 Ohio St.3d 513, 728
N.E.2d 342. R.C. Chapter 2950 has been transformed from remedial to punitive as
I have previously argued:
{¶ 14} “ ‘The following comparisons show that the current laws are more
complicated and restrictive than those at issue in Williams and Cook. First, the
label “sexual predator” is now permanent for adult offenders, R.C. 2950.07(B)(1),
whereas previously, offenders had the possibility of having it removed. Former
R.C. 2950.09(D), Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, 2621-
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2623. Second, registration duties are now more demanding and therefore are no
longer comparable to the inconvenience of renewing a driver's license, as Cook
had analogized. Cook, 83 Ohio St.3d at 418, 700 N.E.2d 570. Persons classified
as sex offenders must now personally register with the sheriff of the county in
which they reside, work, and go to school. R.C. 2950.04(A). Sexual predators
must personally register with potentially three different sheriffs every 90 days,
R.C. 2950.06(B)(1)(a), which is hardly comparable to the slight inconvenience of
having one's driver's license renewed every four years. Third, community
notification has expanded to the extent that any statements, information,
photographs, or fingerprints that an offender is required to provide are public
record and much of that material is now included in the sex-offender database
maintained on the Internet by the attorney general. R.C. 2950.081. In Cook, we
considered it significant that the information provided to sheriffs by sex offenders
could be disseminated to only a restricted group of people. Cook, 83 Ohio St.3d at
422, 700 N.E.2d 570. Fourth, new restrictions have been added to R.C. Chapter
2950. Enacted initially as part of Sub.S.B. No. 5, 125th General Assembly,
approved July 31, 2003, R.C. 2950.031 prohibits all classified sex offenders, not
just those convicted of sex offenses against children, from residing within 1,000
feet of any school premises. And fifth, a sheriff is now permitted to request that
the sex offender's landlord or the manager of the sex offender's residence verify
that the sex offender currently resides at the registered address. R.C.
2950.111(A)(1). According to R.C. 2950.111(C), “[a] sheriff or designee of a
sheriff is not limited in the number of requests that may be made under this
section regarding any registration, provision of notice, or verification, or in the
number of times that the sheriff or designee may attempt to confirm, in manners
other than the manner provided in this section, that an offender * * * currently
resides at the address in question.”
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{¶ 15} “ ‘While protection of the public is the avowed goal of R.C.
Chapter 2950, we cannot deny that severe obligations are imposed upon those
classified as sex offenders. All sexual predators and most habitual sex offenders
are expected, for the remainder of their lives, to register their residences and their
employment with local sheriffs. Moreover, this information will be accessible to
all. The stigma attached to sex offenders is significant, and the potential exists for
ostracism and harassment, as the Cook court recognized. Id., 83 Ohio St.3d at
418, 700 N.E.2d 570. Therefore, I do not believe that we can continue to label
these proceedings as civil in nature. These restraints on liberty are the
consequences of specific criminal convictions and should be recognized as part of
the punishment that is imposed as a result of the offender's actions.’ State v.
Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 45-46
(Lanzinger, J., concurring in part and dissenting in part).” Ferguson, 120 Ohio
St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 45-47 (Lanzinger, J., dissenting).
{¶ 16} Following the enactment of S.B. 10, all doubt has been removed:
R.C. Chapter 2950 is punitive. The statutory scheme has changed dramatically
since this court described the registration process imposed on sex offenders as an
inconvenience “comparable to renewing a driver’s license.” Cook, 83 Ohio St.3d
at 418, 700 N.E.2d 570. And it has changed markedly since this court concluded
in Ferguson that R.C. Chapter 2950 was remedial.
{¶ 17} Under the statutory scheme in effect at the time Williams
committed the offense, he was entitled to a hearing at which a court would
determine whether he should be classified as a sexual predator, a habitual sex
offender or a habitual child-victim offender, or a sexually oriented offender. The
court would have considered various statutory factors in making its determination.
Former R.C. 2950.09(B)(3), Am.Sub.S.B. No. 5, 150 Ohio Laws, Part IV, 6558,
6689-6690. Under S.B. 10, Williams is classified as a Tier II sex offender based
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solely on the offense he committed, without regard to the circumstances of the
crime or his likelihood to reoffend. R.C. 2950.01(E), (F), and (G).
{¶ 18} Under S.B. 5, Williams might not have been subject to registration
requirements. The trial court twice informed Williams that he would not be
required to register as a sex offender. Under S.B. 10, based on his classification
as a Tier II sex offender, Williams is automatically subject to registration
requirements that obligate him to register in person in the county where he
resides, in the county where he works, and in the county where he attends school.
R.C. 2950.04(A)(2).
{¶ 19} Under S.B. 5, Williams could have been required to register as a
sex offender for a period of ten years. Former R.C. 2950.07(B)(3), 150 Ohio
Laws, Part IV, at 6681-6683. Based upon comments made by the judge when
Williams entered his plea, he likely would not have been required to register.
Under S.B. 10, Williams is required to register as a sex offender for 25 years.
R.C. 2950.07(B)(2).
{¶ 20} Sex offenders are no longer allowed to challenge their
classifications as sex offenders because classification is automatic depending on
the offense. Judges no longer review the sex-offender classification. In general,
sex offenders are required to register more often and for a longer period of time.
They are required to register in person and in several different places. R.C.
2950.06(B) and 2950.07(B). Furthermore, all the registration requirements apply
without regard to the future dangerousness of the sex offender. Instead,
registration requirements and other requirements are based solely on the fact of a
conviction. Based on these significant changes to the statutory scheme governing
sex offenders, we are no longer convinced that R.C. Chapter 2950 is remedial,
even though some elements of it remain remedial. We conclude that as to a sex
offender whose crime was committed prior to the enactment of S.B. 10, the act
“imposes new or additional burdens, duties, obligations, or liabilities as to a past
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transaction,” Pratte, 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, at ¶
37, and “create[s] new burdens, new duties, new obligations, or new liabilities not
existing at the time,” Miller, 64 Ohio St. at 51, 59 N.E. 749.
{¶ 21} No one change compels our conclusion that S.B. 10 is punitive. It
is a matter of degree whether a statute is so punitive that its retroactive application
is unconstitutional. Cook, 83 Ohio St.3d at 418, 700 N.E.2d 570. When we
consider all the changes enacted by S.B. 10 in aggregate, we conclude that
imposing the current registration requirements on a sex offender whose crime was
committed prior to the enactment of S.B. 10 is punitive. Accordingly, we
conclude that S.B. 10, as applied to defendants who committed sex offenses prior
to its enactment, violates Section 28, Article II of the Ohio Constitution, which
prohibits the General Assembly from passing retroactive laws.
Conclusion
{¶ 22} The General Assembly has the authority, indeed the obligation, to
protect the public from sex offenders. It may not, however, consistent with the
Ohio Constitution, “impose[] new or additional burdens, duties, obligations, or
liabilities as to a past transaction.” Pratte, 125 Ohio St.3d 473, 2010-Ohio-1860,
929 N.E.2d 415, at ¶ 37. If the registration requirements of S.B. 10 are imposed
on Williams, the General Assembly has imposed new or additional burdens,
duties, obligations, or liabilities as to a past transaction. We conclude that S.B.
10, as applied to Williams and any other sex offender who committed an offense
prior to the enactment of S.B. 10, violates Section 28, Article II of the Ohio
Constitution, which prohibits the General Assembly from enacting retroactive
laws.
{¶ 23} We reverse the judgment of the court of appeals and remand the
cause for resentencing under the law in effect at the time Williams committed the
offense.
Judgment reversed
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and cause remanded.
O’CONNOR, C.J., and LUNDBERG STRATTON, LANZINGER, and MCGEE
BROWN, JJ., concur.
O’DONNELL and CUPP, JJ., dissent.
__________________
O’DONNELL, J., dissenting.
{¶ 24} I respectfully dissent. Consistent with prior holdings of this court
in State v. Cook (1998), 83 Ohio St.3d 404, 700 N.E.2d 570, State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, and State v. Ferguson, 120
Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, the registration and notification
requirements of 2007 Am.Sub.S.B. No. 10 (“S.B. 10”) are civil in nature and do
not violate the Retroactivity Clause of the Ohio Constitution. And every federal
circuit court that has considered similar federal sex-offender registration and
notification requirements has held that they may be retroactively applied. For
these reasons, I would affirm the judgment of the appellate court.
{¶ 25} The Ohio General Assembly has adopted legislation in accordance
with legislation enacted by the United States Congress in an effort to create a
national, uniform system of sex-offender registration. Our long-standing
precedent recognizes the legislature’s authority to make policy decisions for
reasons of public safety and public welfare. Moreover, having considered the
constitutionality of prior sex-offender-registration statutes, this court has
consistently held both that those statutes constitute a civil regulatory scheme
designed to protect the public from known sex offenders and that the statutes may
be retroactively applied to individuals who have committed sexually oriented
offenses in the past.
{¶ 26} In my view, S.B. 10 does not substantially depart from prior
statutory enactments upheld by this court, and today’s majority decision that it
violates the Retroactivity Clause is not only out of sync with our prior precedent,
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but also with precedent in every federal circuit court of appeals that has addressed
similar sex-offender-registration requirements.
Sex-Offender Registration
{¶ 27} The question whether S.B. 10 violates the Retroactivity Clause
requires a review of the prior sex-offender-registration statutes, Am.Sub.H.B. No.
180 (“H.B. 180”), 146 Ohio Laws, Part II, 2560, subsequently amended by
Am.Sub.S.B. No. 5 (“S.B. 5”), 150 Ohio Laws, Part IV, 6558, and our decisions
interpreting those statutes.
Megan’s Law
{¶ 28} In 1996, the General Assembly enacted H.B. 180, better known as
“Megan’s Law.” That act revised R.C. Chapter 2950 and established a
comprehensive system of sex-offender classification and registration. The
legislature expressed its intent that the act apply retroactively, regardless of when
the underlying sex offense had been committed, former R.C. 2950.04(A), 146
Ohio Laws, Part II, at 2609-2610, and provided criminal penalties for offenders
who failed to comply with its registration requirements. Former R.C. 2950.99,
146 Ohio Laws, Part II, at 2634-2635.
{¶ 29} Megan’s Law divided sex offenders into three categories –
sexually oriented offenders, habitual sex offenders, and sexual predators. See
former R.C. 2950.04(A) and 2950.09(A) and (E), 146 Ohio Laws, Part II, at 2609,
2618, 2623-2624. Former R.C. 2950.04(A), 2950.06(B)(2), 146 Ohio Laws, Part
II, at 2613, and 2950.07(B)(3), 146 Ohio Laws, Part II, at 2617, provided that
anyone convicted of a sexually oriented offense be classified as a sexually
oriented offender and be subject to annual reporting requirements for a period of
ten years. If upon a conviction for a sexually oriented offense after the effective
date of the statute a judge determined that the offender had a previous conviction
for a sexually oriented offense, former R.C. 2950.09(E), 146 Ohio Laws, Part II,
at 2623-2624, required the court to adjudicate the offender a habitual sex
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offender, thereby subjecting the offender to annual reporting for 20 years pursuant
to former R.C. 2950.06(B)(2) and 2950.07(B)(2), 146 Ohio Laws, Part II, at 2613,
2617.
{¶ 30} The General Assembly reserved the most stringent reporting
requirements for offenders who had either been convicted of a sexual-predator
specification or adjudicated by a court to be a sexual predator. In order to
adjudicate an offender as a sexual predator, the trial court had to conduct a
hearing to consider the offender’s likelihood of reoffending, at which the offender
had the right to counsel, to testify on his own behalf, and to cross-examine
witnesses. Former R.C. 2950.01(E) and 2950.09(B), 146 Ohio Laws, Part II, at
2602, 2618-2619. Megan’s Law required sexual predators to report every 90 days
for life, former R.C. 2950.06(B)(1) and 2950.07(B)(2), 146 Ohio Laws, Part II, at
2613, 2617, unless the court removed that classification pursuant to former R.C.
2950.09(D), 146 Ohio Laws, Part II, at 2621-2623.
{¶ 31} Megan’s Law required all sex offenders to register with the sheriff
in the county in which they resided or were temporarily domiciled for more than
seven days. Former R.C. 2950.04(A), 146 Ohio Laws, Part II, at 2609. It
required sex offenders to provide a current residence address, the name and
address of any employer, any other information required by the bureau of criminal
identification and investigation, and a photograph. Former R.C. 2950.04(C), 146
Ohio Laws, Part II, at 2610. Additionally, the law required sexual predators and
habitual sex offenders to provide the license plate number of each motor vehicle
owned and/or registered in the offender’s name. Id.Constitutional Challenges to Megan’s Law
{¶ 32} We have considered several challenges to the constitutionality of
Megan’s Law involving retroactivity, ex post facto, and due-process concerns,
and in each case, our analysis addressed whether the requirements the law enacted
were punitive or civil in nature.
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{¶ 33} In State v. Cook (1998), 83 Ohio St.3d 404, 700 N.E.2d 570, we
considered the constitutionality of Megan’s Law as applied to offenders who had
committed sexually oriented offenses before the effective date of the statute. We
held that the law did not violate Section 28, Article II of the Ohio Constitution,
the Retroactivity Clause, because the registration requirements provided in the act
were necessary to achieve the legislature’s remedial purpose of protecting the
public from sexual offenders. Id. at 412. Although we recognized that Megan’s
Law increased the frequency and duration of reporting beyond that required by
prior law, id. at 411, we determined that these provisions only “us[ed] past events
to establish current status” and constituted “de minimis procedural requirements”
necessary to achieve the purpose of the act, id. at 412.
{¶ 34} Additionally, in Cook, we rejected an ex post facto challenge to
Megan’s Law, explaining that the statute did not contain any language expressing
an intent to punish sex offenders for prior conduct, id. at 417. Nor could it be
considered punitive in practical effect, id. at 423. Rather, the statutory scheme
furthered the stated legislative purpose of protecting the public from sexual
offenders. Id. While weighing the seven nonexhaustive guideposts set forth in
Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d
644,1 we determined that the act did not impose a new affirmative disability or
further the traditional aims of punishment, but imposed an inconvenience
comparable to the renewal of a driver’s license. Cook at 418, 420. Because we
concluded that the registration requirements were not punitive, but remedial, in
1. “These guideposts include ‘[w]hether the sanction involves an affirmative disability or
restraint, whether it has historically been regarded as a punishment, whether it comes into play
only on a finding of scienter, whether its operation will promote the traditional aims of
punishment—retribution and deterrence, whether the behavior to which it applies is already a
crime, whether an alternative purpose to which it may rationally be connected is assignable for it,
and whether it appears excessive in relation to the alternative purpose assigned * * * .’ (Footnotes
omitted.) ” Cook, 83 Ohio St.3d at 418, 700 N.E.2d 570, quoting Mendoza-Martinez, 372 U.S. at
168-169, 83 S.Ct. 554, 9 L.Ed.2d 644.
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nature, we held that the retrospective application of Megan’s Law did not violate
the Ex Post Facto Clause. Id. at 423.
{¶ 35} In State v. Williams (2000), 88 Ohio St.3d 513, 528, 728 N.E.2d
342, we relied upon our decision in Cook and held that because Megan’s Law did
not impose punishment, it necessarily did not violate the Double Jeopardy Clauses
of the Constitutions of the United States and the state of Ohio.
{¶ 36} In State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773
N.E.2d 502, we considered whether Megan’s Law violated an offender’s right to
procedural due process afforded by the United States and Ohio Constitutions by
imposing a sex-offender-classification-and-registration requirement without first
conducting a hearing. Adhering to our holdings in Cook and Williams, we
determined that an offender suffers neither bodily restraint nor punishment as a
result of the de minimis registration requirements imposed by Megan’s Law; thus,
classification did not interfere with a protected liberty or property interest, and
due process did not require a court to conduct a hearing before finding a
defendant to be a sexually oriented offender. Id. at ¶ 14-15, 18.
S.B. 5
{¶ 37} In 2003, the General Assembly enacted S.B. 5, amending Megan’s
Law to provide that regardless of when a sexually oriented offense that is not
registration-exempt occurred, sex offenders had to personally register with the
sheriff of the county in which they (a) resided or were temporarily domiciled for
more than five days, (b) attended school, and/or (c) worked for more than 14 days
or for an aggregate of 30 days in a calendar year. Former R.C. 2950.04(A)(1),
150 Ohio Laws, Part IV, at 6657-6658. The act imposed a duty upon sex
offenders to report not only their home address but also the address of their school
and place of employment. Former R.C. 2950.06(A), 150 Ohio Laws, Part IV, at
6673. Adult offenders classified as sexual predators could no longer petition to
remove the designation. Former R.C. 2950.07(B)(3) and 2950.09(D)(1), 150
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Ohio Laws, Part IV, at 6683, 6696. Additionally, the act provided that any
information provided by sex offenders to the county sheriff was available for
public inspection, and it directed the attorney general to establish an Internet
database providing this information to the public. Former R.C. 2950.081,
2950.13(A)(11), 150 Ohio Laws, Part IV, at 6686, 6728-6729.
Constitutional Challenges to S.B. 5
{¶ 38} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865
N.E.2d 1264, we considered whether Megan’s Law remained a civil, regulatory
scheme following its amendment by S.B. 5. The issue in Wilson concerned
whether an appellate court should apply a civil or criminal standard of review to a
trial court decision not to classify an offender as a sexual predator. Adhering to
our decisions in Cook and Williams, we held that sex-offender-classification
proceedings were not criminal in nature, id. at ¶ 32, notwithstanding any
increased burdens and reporting requirements established by S.B. 5. We therefore
concluded that courts reviewing the outcome of sexual-predator-classification
hearings should apply the civil manifest-weight-of-the-evidence standard and
affirm a trial court judgment if it was supported by some competent, credible
evidence. Wilson at ¶ 32.
{¶ 39} In State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896
N.E.2d 110, we addressed retroactivity and ex post facto challenges to R.C.
Chapter 2950, as amended by S.B. 5. Although we recognized that the law “may
pose significant and often harsh consequences for offenders,” then Justice
O’Connor (now Chief Justice), writing for the court, explained that the
amendments enacted by S.B. 5 had not “transmogrified the remedial statute into a
punitive one.” Id. at ¶ 32. Further, we acknowledged the General Assembly’s
“clear reaffirmation of an intent to protect the public from sex offenders” and
concluded that “the more burdensome registration requirements * * * were not
born of a desire to punish.” Id. at ¶ 35-36. Recognizing that “ ‘consequences as
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drastic as deportation, deprivation of one’s livelihood, and termination of
financial support have not been considered sufficient to transform an avowedly
regulatory measure into a punitive one,’ ” we determined that the additional
burdens imposed by S.B. 5 did not amount to punishment. Id. at ¶ 39, quoting
Doe v. Pataki (C.A.2, 1997), 120 F.3d 1263, 1279. Accordingly, we held that the
amendments enacted by S.B. 5 did not violate the retroactivity clause of the Ohio
Constitution. Id. at ¶ 40. Furthermore, based on our conclusion that R.C. Chapter
2950 established a civil, remedial regulatory scheme, we rejected Ferguson’s
related ex post facto challenge. Id. at ¶ 43.
S.B. 10 – The Adam Walsh Act
{¶ 40} On July 27, 2006, Congress enacted the Adam Walsh Child
Protection and Safety Act (“Adam Walsh Act”) with the express intent “[t]o
protect children from sexual exploitation and violent crime, to prevent child abuse
and child pornography, to promote Internet safety, and to honor the memory of
Adam Walsh and other child crime victims.” Title of the Adam Walsh Child
Protection and Safety Act, Pub.L. 109-248, 120 Stat. 587. The act establishes the
Sex Offender Registration and Notification Act (“SORNA”) with the stated
purpose of creating uniform national classification and reporting standards to
protect the public from sex offenders and child-victim-oriented offenders.
Section 16901 et seq., Title 42, U.S.Code. Additionally, Congress designed
SORNA with the intent “to eliminate potential gaps and loopholes under the pre-
existing standards by means of which sex offenders could attempt to evade
registration requirements or the consequences of registration violations.” Section
8894-01, Title 72, C.F.R.
{¶ 41} To comply with the Adam Walsh Act, the General Assembly
passed S.B. 10 in June 2007. S.B. 10 repealed Ohio’s prior sex-offender-
classification scheme, replacing it with a three-tiered system classifying offenders
automatically based on the offense of conviction: an adult Tier I offender is
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required to register every year for 15 years; an adult Tier II offender is required to
register every 180 days for 25 years; and a Tier III offender is required to register
every 90 days for life. R.C. 2950.01(E) through (G), 2950.06(B), and
2950.07(B).
{¶ 42} As did the S.B. 5 amendments to Megan’s Law, S.B. 10 also
requires offenders to personally register with the sheriff of the county or counties
in which they reside, attend school, and work. R.C. 2950.04(A)(2) and
2950.041(A)(2). However, the act reduces the amount of time that an offender
may reside or be temporarily domiciled in a county without registering from five
to three days, and an offender must register in any county in which the offender
works for more than three days or for an aggregate period of 14 or more days in
the calendar year (shortened from 14 days and 30 days respectively).
{¶ 43} Additionally, R.C. 2950.10 and 2950.11 require the sheriff to
provide to victims, if the information is requested, and to certain community
members, notice of the name, address, offense, and photograph of registered Tier
III offenders. Further, R.C. 2950.13 continues the duty of the attorney general to
maintain a state registry of sex offenders for law enforcement and an Internet
database providing information on sex offenders to the public.
S.B. 10 is a Civil Remedial Scheme
{¶ 44} The enactment of S.B. 10 has brought the same types of challenges
to its constitutionality that we previously considered and rejected in our review of
Megan’s Law and its amendments. Adherence to the rule of law established in
our prior decisions requires the rejection of these new arguments because S.B. 10
has not significantly altered the regulatory system of sex-offender registration.
{¶ 45} There is no dispute that the General Assembly intended the
provisions of S.B. 10 to apply retroactively. Thus, for purposes of determining
whether S.B. 10 violates the Retroactivity Clause of the Ohio Constitution, the
question is whether the statute “ ‘takes away or impairs vested rights acquired
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under existing laws, or creates a new obligation, imposes a new duty, or attaches a
new disability, in respect to transactions or considerations already past.’ ” Cook,
83 Ohio St.3d at 410, 700 N.E.2d 570, quoting Cincinnati v. Seasongood (1889),
46 Ohio St. 296, 303, 21 N.E. 630.
{¶ 46} Nonetheless, we clarified in Ferguson that “Ohio retroactivity
analysis does not prohibit all increased burdens; it prohibits only increased
punishment.” 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, at ¶ 39.
Further, as we explained in State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059,
775 N.E.2d 829, a statute that operates retroactively is not unconstitutional if it is
a remedial law, which we have defined to mean “those laws affecting merely ‘
“the methods and procedure[s] by which rights are recognized, protected and
enforced, not * * * the rights themselves.” ’ ” (Emphasis sic.) Id. at ¶ 15, quoting
Bielat v. Bielat (2000), 87 Ohio St.3d 350, 354, 721 N.E.2d 28, quoting Weil v.
Taxicabs of Cincinnati, Inc. (1942), 139 Ohio St. 198, 205, 22 O.O. 205, 39
N.E.2d 148.
{¶ 47} S.B. 10 does not provide for the infliction of punishment on sex
offenders and therefore is a remedial law. The General Assembly expressed its
intent to establish a civil, remedial system designed to “protect the safety and
general welfare of the people of this state” and to “assur[e] public protection,”
R.C. 2950.02(B), in light of its determination that “[s]ex offenders and child-
victim offenders pose a risk of engaging in further sexually abusive behavior even
after being released from * * * confinement,” R.C. 2950.02(A)(2). The General
Assembly’s legislative finding that sex-offender-registration laws are necessary to
protect the public because sex offenders pose a present danger — not because
additional punishment should be inflicted on them — deserves deference.
{¶ 48} Further, this court has very recently determined that S.B. 10 is a
civil, remedial law, explaining in State v. Clayborn, 125 Ohio St.3d 450, 2010-
Ohio-2123, 928 N.E.2d 1093, that “sex-offender-classification proceedings are
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January Term, 2011
civil in nature and require a civil manifest-weight-of-the-evidence standard.” Id.
at ¶ 11. In that case, we considered whether the time limitation for filing an
appeal in a criminal or in a civil case applies to the appeal from a judgment
classifying a defendant as a Tier II sex offender. Although we held that the
limitations period for appeals from criminal cases applied, relying on Cook,
Wilson, and Ferguson, we nonetheless determined that “an appeal from a sexual
offender classification judgment is a civil matter within the context of a criminal
case.” Id.
{¶ 49} Contrary to the majority’s position, the fact that the sex-offender-
registration provisions appear in the criminal code and that the classification
categories are directly linked to convictions for specific offenses does not make
S.B. 10 punitive in nature. Rather, the General Assembly found that a past
conviction for a sex offense is an indication of the present threat that a sex
offender poses to the public, and we have previously recognized that the
legislature may “us[e] past events to establish current status.” Cook, 83 Ohio
St.3d at 412, 700 N.E.2d 570.
{¶ 50} While the legislature could have employed an individualized risk
assessment of the danger posed by a sex offender, no constitutional mandate
exists requiring that such measures be used. See Smith v. Doe (2003), 538 U.S.
84, 104, 123 S.Ct. 1140, 155 L.Ed.2d 164 (the “determination to legislate with
respect to convicted sex offenders as a class, rather than require individual
determination of their dangerousness, does not make the statute a punishment” for
purposes of the Ex Post Facto Clause).
{¶ 51} Moreover, as part of the national system of sex-offender
registration and notification, and in response to the federal mandate for states to
comply or risk losing federal funds otherwise allocated to them, Section 16925,
Title 42, U.S.Code, the General Assembly has classified individuals as Tier I, II,
or III sex offenders based on the offense of which they were convicted in order to
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establish in Ohio the national identification standards for these offenders. The
United States Congress enacted the federal Adam Walsh Act, which Ohio adopted
in S.B. 10, specifically to solve “deficiencies in prior law that had enabled sex
offenders to slip through the cracks * * * [b]y facilitating the collection of sex-
offender information and its dissemination among jurisdictions.” Carr v. United
States (2010), ___ U.S. ___, 130 S.Ct. 2229, 2240-2241, 176 L.Ed.2d 1152.
{¶ 52} Thus, the purpose of classifying all sex offenders into tiers based
on the offense of conviction is not to punish an offender. Rather, the General
Assembly sought to establish a system that provides for the efficient sharing of
information about sex offenders necessary to safeguard the public from
potentially dangerous individuals.
{¶ 53} The provisions of S.B. 10 do require sex offenders to register more
often, in more places, and for a longer period of time than formerly required by
prior laws, but this does not mean that the statute violates the Retroactivity
Clause. As the court explained in Cook, “where no vested right has been created,
‘a later enactment will not burden or attach a new disability to a past transaction
or consideration in the constitutional sense, unless the past transaction or
consideration * * * created at least a reasonable expectation of finality.’ ” Cook,
83 Ohio St.3d at 412, 700 N.E.2d 570, quoting State ex rel. Matz v. Brown (1988),
37 Ohio St.3d 279, 281, 525 N.E.2d 805. Nonetheless, the court emphasized that
“ ‘[e]xcept with regard to constitutional protections against ex post facto laws * *
* felons have no reasonable right to expect that their conduct will never
thereafter be made the subject of legislation.’ ” (Emphasis sic.) Id., quoting Matz
at 281-282.
{¶ 54} Because S.B. 10 does not inflict punishment on sex offenders for
past crimes, applying its provisions to defendants who committed sex offenses
prior to the date of its enactment does not violate the Retroactivity Clause.
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January Term, 2011
{¶ 55} This view is supported by the United States Supreme Court’s
decision in Smith, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164, which upheld
Alaska’s sex-offender-registration statute against an ex post facto challenge. The
court determined that the registration requirements (1) did not resemble traditional
means of punishment in that they did not place offenders on public display for
ridicule but instead disseminated accurate information, id. at 97-99, (2) imposed
no physical restraint, leaving offenders free to live and work without direct
supervision, id. at 100-101, (3) did not promote the traditional aims of punishment
so as to overcome the legislature’s regulatory objective, id. at 102, (4) were not
retributive, because the categories of those who had to report and the
corresponding length of the reporting requirement were reasonably related to the
danger of recidivism, consistent with the regulatory objective, id. at 102, (5) were
rationally related to the regulatory purpose, despite the lack of an individualized
assessment of the risk of recidivism, id. at 102-104, and (6) were not excessive in
relation to the stated regulatory purpose given the high risk of recidivism posed
by sex offenders, id. at 104.
{¶ 56} Because the practical effect of the statute did not negate the
legislature’s stated intent to establish a civil regulatory scheme, the United States
Supreme Court held that it did not impose punishment and therefore did not
violate the Ex Post Facto Clause of the United States Constitution. Id. at 105-106.
{¶ 57} Moreover, every federal circuit court of appeals to consider
whether the Sex Offender Registration and Notification Act (SORNA), passed by
Congress as part of the federal Adam Walsh Act, is constitutional has held that it
may be retroactively applied to sex offenders who committed sex offenses prior to
its enactment. See United States v. DiTomasso (C.A.1, 2010), 621 F.3d 17, 25;
United States v. Guzman (C.A.2, 2010), 591 F.3d 83, 94; United States v.
Shenandoah (C.A.3, 2010), 595 F.3d 151, 158-159; United States v. Gould
(C.A.4, 2009), 568 F.3d 459, 466; United States v. Young (C.A.5, 2009), 585 F.3d
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199, 203-206; United States v. Samuels (C.A.6, 2009), 319 Fed.Appx. 389, 394-
395, whose overruling on other grounds was recognized by United States v.
Utesch (C.A.6, 2010), 596 F.3d 302, 309, fn .6; United States v. May (C.A.8,
2008), 535 F.3d 912, 919-920; United States v. George (C.A.9, 2010), 625 F.3d
1124, 1131; United States v. Hinckley (C.A.10, 2008), 550 F.3d 926, 936-938;
United States v. Ambert (C.A.11, 2009), 561 F.3d 1202, 1207.
{¶ 58} As the Seventh Circuit Court of Appeals recently explained in
United States v. Leach (C.A.7, 2011), 639 F.3d 769, 773, “whether a
comprehensive registration regime targeting only sex offenders is penal * * * is
not an open question. In Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d
164 (2003), the Supreme Court held that an Alaska sex offender registration and
notification statute posed no ex post facto violation because it was a civil, rather
than penal, statute.* * * Leach has not identified any aspects of SORNA's
registration provisions that distinguish this case from Smith. This is unsurprising,
since we too are unable to find any meaningful distinctions. Therefore, we join
our sister circuits in concluding that SORNA is not an ex post facto law.”
{¶ 59} There are no significant differences between Megan’s Law, which
this court has previously upheld, and S.B. 10, which conforms to the registration
and notification requirements that have been upheld by federal circuit courts. In
accordance with our precedent and in agreement with the federal circuit courts, I
would hold that S.B. 10 is constitutional because it is a civil, remedial enactment
designed to protect the welfare and safety of the public.
Conclusion
{¶ 60} Little justification exists to abandon the reasoning and conclusions
set forth in the prior decisions of this court, especially in the context of a new
statute that does nothing more than change the frequency and duration of
reporting requirements imposed on sex offenders.
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January Term, 2011
{¶ 61} For these reasons, I would affirm the judgment of the court of
appeals and hold that S.B. 10 does not violate the Retroactivity Clause of the Ohio
Constitution.
CUPP, J., concurs in the foregoing opinion.
__________________
David P. Fornshell, Warren County Prosecuting Attorney, and Michael
Greer and Stacy C. Brown, Assistant Prosecuting Attorneys, for appellee.
Timothy Young, Ohio Public Defender, and Katherine A. Szudy, Assistant
Public Defender, for appellant.
Ron O’Brien, Franklin County Prosecuting Attorney and Steven L. Taylor,
Assistant Prosecuting Attorney, urging affirmance for amicus curiae Franklin
County Prosecuting Attorney.
Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, and David M. Lieberman, Deputy Solicitor, urging affirmance for
amicus curiae Ohio Attorney General.
Gamso, Helmick, & Hoolahan and Jeffrey M. Gamso; and James L.
Hardiman and Carrie L. Davis, urging reversal for amicus curiae American Civil
Liberties Union of Ohio Foundation, Inc.
Margie Slagle, urging reversal for amici curiae Cleveland Rape Crisis
Center and Texas Association Against Sexual Assault.
______________________
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