In re Bruce S. , 134 Ohio St. 3d 477 ( 2012 )

[Cite as In re Bruce S., 134 Ohio St. 3d 477, 2012-Ohio-5696.]
IN RE BRUCE S.
[Cite as In re Bruce S., 134 Ohio St. 3d 477, 2012-Ohio-5696.]
Sex-offender registration—Senate Bill 10—Effective date versus enactment date—
S.B. 10’s classification, registration, and community-notification
requirements cannot be constitutionally applied to a sex offender whose
offense occurred between July 1, 2007, and January 1, 2008—Judgment
affirmed.
(No. 2012-0059—Submitted September 12, 2012—Decided December 6, 2012.)
CERTIFIED by the Court of Appeals for Hamilton County,
No. C-110042, 2011-Ohio-6634.
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O’CONNOR, C.J.
{¶ 1} In this appeal, we answer a question certified, sua sponte, by the
First District Court of Appeals: “May Senate Bill 10’s classification, registration,
and community-notification provisions be constitutionally applied to a sex
offender who had committed his sex offense between the July 1, 2007, repeal of
Megan’s Law and the January 1, 2008, effective date of Senate Bill 10’s
classification, registration, and community-notification provisions?” For the
reasons that follow, we answer the question in the negative, as did the First
District.
RELEVANT BACKGROUND
{¶ 2} Appellee, Bruce S., committed an act on September 1, 2007, that, if
committed by an adult, would constitute rape. On November 25, 2008, he was
adjudicated delinquent, and the juvenile court, applying Am.Sub.S.B. No. 10
(“S.B. 10”), classified him as a Tier III (the most serious) sex offender, subject to
community-notification requirements.
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{¶ 3} He appealed his classification, and the First District Court of
Appeals reversed. In re Bruce S., 1st Dist. No. C-081300 (Dec. 16, 2009). It held
that the juvenile court committed reversible error by failing to use its discretion to
classify Bruce S. as a Tier I, Tier II, or Tier III sex offender. Accordingly, it
vacated the classification and remanded the case to the juvenile court to conduct a
new classification hearing.
{¶ 4} On remand, the juvenile court magistrate held a classification
hearing on May 19, 2010. The magistrate again classified Bruce S. as a Tier III
sex offender. The juvenile court judge overruled Bruce’s objections on December
20, 2010.
{¶ 5} Bruce S. appealed his classification, asserting that he should not be
classified as a Tier III sex offender under S.B. 10 because he committed his
offense before the effective date of the applicable part of that statute. The First
District Court of Appeals agreed that the juvenile court had erred in applying S.B.
10 to him and reversed. In re Bruce S., Hamilton App. No. C-110042, 2011-
Ohio-6634, ¶ 6. But noting that its analysis was in conflict with the analysis of
the Eighth District Court of Appeals, the First District certified the question to us.
Id. at ¶ 8. Upon review, we agreed that the question was properly before us and
ordered briefing. In re Bruce S., 131 Ohio St. 3d 1482, 2012-Ohio-1143, 963
N.Ed.2d 823. We now resolve the conflict.
ANALYSIS
{¶ 6} In State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, 952
N.E.2d 1108, this court held, at syllabus: “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.” Williams noted, in passing, that 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.” Id. at ¶ 7. But it never addressed the discrete issue
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presented here, i.e., whether an individual who committed a sex offense after S.B.
10’s enactment date1 (June 27, 2007) but before the date on which S.B. 10’s
registration, classification and community-notification provisions became
effective (January 1, 2008) is subject to S.B. 10’s provisions, or whether he is
subject to the provisions of the predecessor statute, Megan’s Law, under which
sex-offender registration requirements were less severe. Id. at ¶ 16-20.
{¶ 7} In considering that question, we are presented with two reasonable
answers. The First District in this case held that the critical date was January 1,
2008. In re Bruce S., 2011-Ohio-6634, ¶ 5. But the Eighth District, in State v.
Scott, 8th Dist. No. 91890, 2011-Ohio-6255, ¶ 5, summarily held that S.B. 10’s
enactment date of June 27, 2007, controls. We adopt the reasoning of the First
District, which applied Cox v. Ohio Dept. of Transp., 67 Ohio St. 2d 501, 508, 424
N.E.2d 597 (1981).
{¶ 8} In Cox, this court adopted a “well-stated” rule proffered by the
Legislative Service Commission and held:
“Where an act of the General Assembly amends an existing
section of the Revised Code * * *, postpones the effective date of
the amended section for one year after the effective date of the act,
and repeals the ‘existing’ section in a standard form of repealing
clause used for many years by the General Assembly for the
purpose of complying with Section 15(D) of Article II of the
Constitution of Ohio, the constitutionally mandated repealing
clause must be construed to take effect upon the effective date of
1. In this appeal, the state asserts that the enactment date is June 30, 2007, i.e., the date that the
governor signed the bill. In the conflict case, State v. Scott, Cuyahoga App. No. 91890, 2011-
Ohio-6255, the court treated June 27, 2007, the date on which the bill was passed, as its enactment
date. For purposes of this appeal, it is not necessary to resolve whether the enactment date is June
27 or June 30, 2007. We shall use the state’s date, June 27, 2007, which is consistent with our
prior opinion in Williams.
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the amended section in order to prevent a hiatus in the statutory
law, during which neither the repealed section nor the amended
section is in effect.”
(Footnote omitted.) Cox at 508, quoting the Legislative Service Commission.
{¶ 9} Cox reflects prudential principles that should be applied in all cases
in which the General Assembly amends a statute and then repeals the pre-
amendment version of the statute. In its arguments here, the state ignores Cox.
The state asserts that S.B. 10 was an emergency law that necessarily became
effective immediately. But while the state argues that S.B. 10 became effective
immediately upon the governor’s signature, it also concedes that “the enormity of
this legislation required a period of transition to the new statutory scheme.” We
think that S.B. 10 presents exactly the situation that Cox was designed to control:
to prevent a hiatus during the period in which the legislature amends a statute but
directs that the amendments take place in the future, and orders the repeal of the
preamendment version of the statute after amendment.
{¶ 10} Cox remains an accurate statement of Ohio law and controls here.
The rule in Cox was suggested by the Legislative Service Commission, see Cox at
508, which we recognize plays a vital role in assisting the General Assembly in
drafting legislation. See http://www.lsc.state.oh.us/about/default.htm.
{¶ 11} Moreover, we presume that if the General Assembly disagreed with
the rule set forth in Cox, it would have responded to it at some point in the past 30
years. See State v. Ferguson, 120 Ohio St. 3d 7, 2008-Ohio-4824, 896 N.E.2d
110, ¶ 22, citing Clark v. Scarpelli, 91 Ohio St. 3d 271, 278, 744 N.E.2d 719
(2001), citing State ex rel. Huron Cty. Bd. of Edn. v. Howard, 167 Ohio St. 93, 96,
146 N.E.2d 604 (1957) (“It is presumed that the General Assembly is fully aware
of any prior judicial interpretation of an existing statute when enacting an
amendment”). After all, “the General Assembly has shown no hesitation in acting
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promptly when it disagrees with appellate rulings involving statutory construction
and interpretation.” Id. at ¶ 23, citing Shay v. Shay, 113 Ohio St. 3d 172, 2007-
Ohio-1384, 863 N.E.2d 591, ¶ 25. It has not done so.
{¶ 12} We thus adopt the First District’s analysis and judgment and hold
that Senate Bill 10’s classification, registration, and community-notification
provisions cannot be constitutionally applied to a sex offender who committed his
sex offense between July 1, 2007, and December 31, 2007, the last day before
January 1, 2008, the effective date of S.B. 10’s classification, registration, and
community-notification provisions.
Judgment affirmed.
PFEIFER, LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and
MCGEE BROWN, JJ., concur.
__________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for appellant, the state of Ohio.
Timothy Young, Ohio Public Defender, and Amanda S. Powell, Assistant
Public Defender, for appellee, Bruce S.
Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L.
Taylor, Assistant Prosecuting Attorney, urging reversal on behalf of amicus
curiae, Ohio Prosecuting Attorneys Association.
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