In re D.R. ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re D.R., Slip Opinion No. 2022-Ohio-4493.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-4493IN RE D.R.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re D.R., Slip Opinion No. 2022-Ohio-4493.]
Criminal law—Juvenile law—R.C. 2152.84(A)(2)(b)—Due process of law—
Fourteenth Amendment to the United States Constitution—Article I, Section
16, Ohio Constitution—Fundamental fairness—R.C. 2152.84(A)(2)(b) is
fundamentally unfair when applied to persons who were 16 or 17 years old
at the time of committing a sexually oriented offense and were classified at
the lowest tier for purposes of juvenile-sex-offender registration, because
that statute does not afford the juvenile court discretion at the completion-
of-disposition hearing to consider whether the offender’s tier classification
should be continued beyond age 18 or terminated—Judgment affirmed and
cause remanded for new completion-of-disposition hearing.
(No. 2021-0934—Submitted May 25, 2022—Decided December 16, 2022.)
APPEAL from the Court of Appeals for Hamilton County,
No. C-190594, 2021-Ohio-1797.
SUPREME COURT OF OHIO
__________________
BRUNNER, J.
{¶ 1} Ohio’s juvenile-justice system, codified in R.C. Chapters 2151 and
2152, seeks to care for, protect, and rehabilitate children while at the same time
ensure public safety and accountability for wrongdoing by children. See R.C.
2151.01 and 2152.01. These goals do not perfectly align, and often, in our attempt
to achieve them, children in the juvenile system are caught between the two,
receiving “the worst of both worlds,” being afforded neither the full protections
given to adults in criminal courts nor the individualized care and treatment required
to rehabilitate them as juveniles. Kent v. United States, 383 U.S. 541, 556, 86 S.Ct.
1045, 16 L.Ed.2d 84 (1966).
{¶ 2} The hybrid nature of juvenile courts—combining aspects of both the
adult criminal-justice system and the parens patriae doctrine of protecting
children—requires nuanced and balanced procedures. The General Assembly has
specifically instructed this court to “liberally interpret[] and construe[]” R.C.
Chapters 2151 and 2152 so as “[t]o provide judicial procedures * * * in which the
parties are assured of a fair hearing, and their constitutional and other legal rights
are recognized and enforced.” R.C. 2151.01(B). The First District Court of
Appeals followed this instruction when it found R.C. 2152.84 unconstitutional as
applied to appellee, D.R.—the juvenile in this case. 2021-Ohio-1797, 173 N.E.3d
103, ¶ 14.
{¶ 3} A juvenile who commits a sexually oriented offense at the age of 14,
15, 16, or 17 is subject to classification as a juvenile-offender registrant when the
juvenile court issues its dispositional order. See R.C. 2152.82 through 2152.86.
When a juvenile court orders a juvenile offender to be classified as a juvenile-
offender registrant, it must conduct an initial hearing to determine the juvenile’s
classification level—Tier I, II, or III. R.C. 2152.831(A). The juvenile court must
also conduct a separate hearing at the end of the juvenile’s disposition “to review
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the effectiveness of the disposition and of any treatment provided for the child.”
R.C. 2152.84(A)(1). At the completion-of-disposition hearing, the juvenile court
is required to determine the level of risk that the juvenile might reoffend and
whether the juvenile’s classification should be continued, terminated, or modified
as set forth in the statute. Id.{¶ 4} But under R.C. 2152.84(A)(2)(b), for a juvenile offender who was 16
or 17 years old at the time of the offense and was classified as a Tier 1 sex offender,
the juvenile court must continue that classification at the completion-of-disposition
hearing, no matter how effective the treatment was or whether any risk of
reoffending is present. And because R.C. 2152.85(B)(1) does not permit a juvenile
to request an offender-classification review for three years, that Tier 1 classification
follows the juvenile into adulthood.
{¶ 5} A juvenile court’s ability to individually assess and treat juvenile
offenders is a key element to maintaining fairness in our juvenile-justice system.
So, too, is shielding juveniles from carrying the consequences and stigma of their
juvenile delinquency into adulthood. See State v. Smith, 167 Ohio St.3d 423, 2022-
Ohio-274, 194 N.E.3d 297, ¶ 1, citing State v. Hanning, 89 Ohio St.3d 86, 89, 728
N.E.2d 1059 (2000); State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d
448, ¶ 19. And the juvenile-justice system values rehabilitation over punishment.
See Hand at ¶ 36. As applied in this case, R.C. 2152.84(A)(2)(b) imposes a
punishment on D.R. that extends into his adulthood through a process that provides
neither discretion by the juvenile court nor shielding by the juvenile-justice system;
the statutory provision is therefore fundamentally unfair to D.R. and similarly
situated juveniles.
I. FACTS
{¶ 6} In 2018, D.R. was adjudicated delinquent for sexually assaulting his
12-year-old friend in 2017 when he was 16 years old, conduct that would have
constituted gross sexual imposition against a victim under the age of 13 if
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committed by an adult. At the disposition hearing, the juvenile court ordered D.R.
to pay restitution and to stay away from the victim, and the court committed D.R.
to the Department of Youth Services until he turned 21. However, the juvenile
court suspended D.R.’s commitment and placed him on probation with a number
of conditions: D.R. was ordered to complete a juvenile-sex-offender treatment
program through Lighthouse Youth and Family Services, attend counseling, and
not be in the presence of any child aged 13 years or younger without supervision.
{¶ 7} A separate hearing was held pursuant to R.C. 2152.83 to determine
D.R.’s classification level as a juvenile-offender registrant. The juvenile court
classified D.R. as a Tier I offender, the lowest classification level and the one with
the least restrictive reporting requirements. D.R. was further notified that he had a
duty to register as a sex offender and that he would be entitled to another hearing
upon the completion of his disposition, at which time the court’s order and any
determinations made therein would be “subject to modification or termination
pursuant to ORC 2152.84 and ORC 2152.85.”
{¶ 8} In 2019, at the end of D.R.’s disposition, the juvenile-court magistrate
conducted a hearing at which D.R.’s attorney requested that the court terminate
D.R.’s probation and juvenile-offender registration status. D.R.’s probation officer
informed the court that D.R. had “done really well on probation,” that he had
graduated from high school and planned to attend college, and that he was working.
The prosecutor and D.R.’s attorney jointly submitted for review a risk-assessment
report prepared by a psychologist as well as D.R.’s discharge summary from his
treatment program. D.R.’s attorney argued that the reports demonstrated D.R.’s
successful completion of the treatment program and that D.R. was by most
indicators assessed as being at low risk for reoffending. D.R.’s attorney also argued
that the statutes preventing the court from exercising discretion to terminate D.R.’s
classification as a juvenile-sex-offender registrant violated D.R.’s due-process
rights under the Fourteenth Amendment to the United States Constitution and
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Article I, Sections 2 and 16 of the Ohio Constitution and should therefore be held
unconstitutional.
{¶ 9} The magistrate found that she had no ability to terminate D.R.’s
classification as a juvenile-sex-offender registrant under the statutory scheme, and
she continued D.R.’s Tier I classification. She terminated D.R.’s probation,
however, finding that he had “successfully completed all conditions imposed upon
him by [the] Court.” D.R. objected to the magistrate’s decision, arguing that the
continuation of his juvenile-sex-offender classification violated his due-process
rights. The juvenile court overruled D.R.’s objections and adopted the magistrate’s
decision. In doing so, the court noted that it “was constrained by current precedent”
established by the First District Court of Appeals in In re M.I., 2017-Ohio-1524, 88
N.E.3d 1276 (1st Dist.), which upheld the classification scheme against an equal-
protection challenge. D.R. appealed the juvenile court’s decision.
{¶ 10} The First District agreed with D.R. It concluded that because R.C.
2152.84 required a hearing yet granted the juvenile court no discretion to eliminate
or alter the Tier I classification that had been imposed on D.R. for an offense he
committed when he was 16 years old, the statute was fundamentally unfair as
applied to D.R. and thus violated his right to procedural due process. 2021-Ohio-
1797, 173 N.E.3d 103, at ¶ 14. The appellate court adhered to our precedent,
recognizing that rehabilitation is the primary goal of the juvenile-justice system and
that rehabilitation requires a juvenile court to conduct careful, individualized
assessments of the juvenile offender, not simply impose automatic penalties. Id. at
¶ 10, citing In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, and
State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209.
{¶ 11} The appellate court reversed the juvenile court’s judgment and
remanded the cause for a new completion-of-disposition hearing to allow the
juvenile court to exercise its discretion to continue D.R.’s Tier I classification or to
“declassify” him. Id. at ¶ 17.
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{¶ 12} Appellant, the state, instituted this discretionary appeal, which we
accepted on the following proposition of law: “The process provided by the
legislature in R.C. 2152.84 complies with state and federal due process and is
fundamentally fair.” See 164 Ohio St.3d 1460, 2021-Ohio-3594, 174 N.E.3d 810.
II. ANALYSIS
A. Due process in the juvenile-justice context
{¶ 13} “Due-process rights are applicable to juveniles through the Due
Process Clause of the Fourteenth Amendment to the United States Constitution and
Article I, Section 16 of the Ohio Constitution.” In re D.S., 146 Ohio St.3d 182,
2016-Ohio-1027, 54 N.E.3d 1184, ¶ 28. Because juvenile courts are not meant to
function as adult criminal courts, many protections available to adult defendants
are available to juvenile offenders only because of principles of due process. See
D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, at ¶ 41-44. For example,
the right to counsel is not guaranteed to juveniles by the Sixth Amendment but
“flows to the juvenile through the Due Process Clause of the Fourteenth
Amendment.” In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177,
¶ 79.
{¶ 14} We examine juvenile procedural-due-process claims through a
framework of fundamental fairness. See In re C.P., 131 Ohio St.3d 513, 2012-
Ohio-1446, 967 N.E.2d 729, at ¶ 72, citing McKeiver v. Pennsylvania, 403 U.S.
528, 543, 91 S.Ct. 1976, 29 L.E.2d 647 (1971) (plurality opinion). Fundamental
fairness requires a “balanced approach,” D.H. at ¶ 49, that assesses the “ ‘several
interests that are at stake,’ ” In re C.S. at ¶ 80, quoting Lassiter v. Dept. of Social
Servs. of Durham Cty., North Carolina, 452 U.S. 18, 25, 101 S.Ct. 2153, 68 L.Ed.2d
640 (1981). This is not an exact test, but it is what is necessary to “preserve the
special nature of the juvenile process.” In re C.P. at ¶ 73.
{¶ 15} Judicial discretion is essential to preserving that special nature of the
juvenile process and to maintaining fundamental fairness in the juvenile-justice
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system. See D.H. at ¶ 59 (“The court’s dispositional role is at the heart of the
remaining differences between juvenile and adult courts”). Juvenile-court judges
and magistrates are tasked to issue orders that not only provide for the “care,
protection, and mental and physical development of children” but at the same time
“protect the public interest and safety, hold the offender accountable,” provide
restitution to the victim, and rehabilitate the offender. R.C. 2152.01(A). To ensure
that orders are “reasonably calculated to achieve the overriding purposes” of the
statutes that govern the juvenile-justice system, R.C. 2152.01(B), juvenile courts
must evaluate the particular facts and circumstances of each case and discern the
particular problems and needs of the juvenile appearing before them.
{¶ 16} In accord with the purpose and goals of the juvenile-justice system
and with the balancing approach required in this special process, we have
determined that when a statute removes the discretion of the juvenile court at a
critical time in the proceedings, it offends fundamental fairness. See In re C.P.,
131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, at ¶ 85. Similarly, the
element of judicial discretion has been the saving factor in our decisions to uphold
statutes that permit the extension of certain penalties for juveniles into adulthood.
See D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, at ¶ 59 (finding that
due process does not require a jury finding to impose a blended juvenile-adult
sentence, because in juvenile proceedings, the judge’s expertise is critical); In re
D.S., 146 Ohio St.3d 182, 2016-Ohio-1027, 54 N.E.3d 1184, at ¶ 32‐37 (holding
that the continuation of juvenile-offender registration into adulthood for a juvenile
who committed a sexually oriented offense at age 14 did not offend due process,
because the applicable statutes included procedural protections to safeguard
fundamental fairness, which included “a hearing and the exercise of the court’s
discretion”). Therefore, judicial discretion is a significant procedural protection in
the juvenile-justice system and one that is necessary to promote that system’s
rehabilitative purpose.
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{¶ 17} We have explained that because juvenile-delinquency procedures
are not entirely civil or criminal in nature, they “occupy a unique place in our legal
system.” In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, at
¶ 65. And we explained that
[a]lthough [this] court had recognized a due process
interest in juvenile court proceedings as early as 1948, * * * the
understanding that the Due Process Clause of the Fourteenth
Amendment applied to juvenile proceedings because of the
juvenile’s liberty interests was more fully developed in Kent [383
U.S. at 555, 86 S.Ct. 1045, 16 L.Ed.2d 84] (recognizing that “the
admonition to function in a ‘parental’ relationship is not an
invitation to procedural arbitrariness” and holding that a juvenile
is entitled to a hearing on the issue of whether juvenile court
jurisdiction should be waived before being released to a criminal
court for prosecution), and crystallized in In re Gault, 387 U.S.
1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
In re C.S. at ¶ 71.
{¶ 18} Because the General Assembly has vested the juvenile courts with
exclusive jurisdiction over juvenile cases, see R.C. 2151.23, juveniles are
statutorily entitled to some procedure. See Kent at 557. Further, juveniles, like
adults, have the right to be free from the imposition of a penalty or punishment
without due process of law. See In re Gault at 13 (“neither the Fourteenth
Amendment nor the Bill of Rights is for adults alone”).
{¶ 19} Therefore, it is our duty to ascertain precisely what procedure is due
in juvenile cases while “being true to the core concept of due process in a juvenile
case—to ensure orderliness and fairness.” In re C.S. at ¶ 81.
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B. Fundamental fairness and Ohio’s juvenile-offender registration
{¶ 20} Fundamental fairness does not provide an exact means by which to
measure due process, but measuring due process requires examining prior
limitations set by any relevant precedents in similar juvenile contexts. See In re
C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, at ¶ 80, quoting
Lassiter, 425 U.S. at 24-25, 101 S.Ct. 2153, 68 L.Ed.2d 640 (explaining that a
fundamental-fairness analysis begins with consideration of “any relevant
precedents”). Therefore, we must approach the analysis in this case by considering
prior limitations we have imposed through our precedents in similar contexts and
by determining the proper balance of the process and interests at stake given the
unique role of juvenile courts.
{¶ 21} The state agrees that fundamental fairness is the framework by which
this court must evaluate D.R.’s constitutional argument.1 It contends that the First
District isolated R.C. 2152.84(A)(2)(b) from the rest of the statute and failed to
consider that the juvenile court may terminate D.R.’s classification three years after
the completion-of-disposition hearing. The state argues that R.C. 2152.84 is
fundamentally fair when applied to D.R. and to similarly situated juveniles. But
our review of relevant precedents affecting Ohio’s juvenile-offender-registration
statutes indicates otherwise.
{¶ 22} Most recently, in In re D.S., this court held that the General
Assembly could impose a registration requirement on juvenile sex offenders and
1. The position in the first dissenting opinion that a different analysis is required was not an argument
that was advanced by the state or D.R. The primary source of authority cited in the first dissenting
opinion, Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), does not
concern the juvenile-offender-registry procedures enacted by the General Assembly in this state;
nor does it inform how to measure due process as it applies to procedures in Ohio’s juvenile courts.
The second dissenting opinion offers a different constitutional analysis, which it argues to
be the obvious and necessary approach to be applied here; yet it also is not one that was advanced
by or addressed by the state or D.R. Moreover, the type of analysis promoted by the second
dissenting opinion has not been adopted by this court or the United States Supreme Court for
application to the provisions of the state and federal Constitutions at issue.
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extend the classification assigned to a juvenile offender into adulthood. 146 Ohio
St.3d 182, 2016-Ohio-1027, 54 N.E.3d 1184, at paragraph three of the syllabus.
D.S., who was 13 and 14 years old at the time of the offenses that triggered his
juvenile-offender registration, id. at ¶ 2, challenged the process the court used in
ordering the continuation of his juvenile-offender-registrant status as set forth in
R.C. 2152.82 and 2152.83, id. at ¶ 12, 40—the same statutes under which D.R. was
initially designated a juvenile offender in this case.
{¶ 23} D.S. specifically challenged the juvenile court’s imposition of
registration and notification requirements “beyond the age jurisdiction of the
juvenile court.” Id. at ¶ 12. In that case, we recognized that “ ‘fundamental fairness
to the child demands the unique expertise of a juvenile judge.’ ” Id. at ¶ 30, quoting
In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, at ¶ 76. We
found that juvenile-sex-offender registration could be imposed beyond the age of
18 or 21 because sufficient procedural safeguards had been put in place, id. at ¶ 37,
namely, the statutes imposing the registration into adulthood provided for a hearing
and the exercise of the juvenile court’s discretion to consider “all relevant factors,”
id. at ¶ 33, citing R.C. 2152.82(B) and 2152.83(A)(2) and (C)(1).
{¶ 24} In In re D.S., we distinguished the registration scheme contemplated
in R.C. 2152.82 and 2152.83 from the mandatory lifetime-registration requirements
imposed under former R.C. 2152.86 that were at issue in In re C.P. In In re C.P.,
we held that the automatic imposition of C.P.’s juvenile-sex-offender classification
offended fundamental fairness because it “undercut[] the rehabilitative purpose of
Ohio’s juvenile system and eliminat[ed] the important role of the juvenile court’s
discretion in the disposition of juvenile offenders.” Id. at ¶ 85. We further
determined that the statute at issue, which required public notification and
registration, violated federal and state prohibitions against cruel and unusual
punishments. Id. at ¶ 69. We referred to those registration and notification
procedures as “the greatest possible stigmatization,” id. at ¶ 68, in a “system where
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rehabilitation is paramount, confidentiality is elemental, and individualized
treatment from judges is essential,” id. at ¶ 69.
{¶ 25} In another case, D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d
209, we examined the process by which a juvenile court determines whether a
juvenile must be classified as a serious youthful offender. We reaffirmed that
fundamental fairness dictates whether such a classification statute meets the
requirements of due process. Id. at ¶ 61. And we disagreed with D.H.’s argument
that the determination whether a juvenile should be classified as a serious youthful
offender should be made by a jury. Id. Instead, we concluded that fundamental
fairness requires that such a determination be made by a judge who is familiar with
the history of the juvenile and the resources of the juvenile-justice system. Id. at
¶ 59.
{¶ 26} Under this court’s holdings in D.H., In re C.P., and In re D.S.,
juvenile registration and classification schemes may be constitutionally permissible
even if they extend into adulthood, but their imposition requires procedural
safeguards that include the exercise of a juvenile court’s discretion. Taking into
account the framework established by these decisions, we now determine whether
R.C. 2152.84 is fundamentally fair when applied to D.R. and similarly situated
juveniles.
C. The constitutionality of R.C. 2152.84 as applied to D.R.
{¶ 27} The state claims that R.C. 2152.84 is fundamentally fair. It argues
that a juvenile receives an initial classification hearing during which the juvenile
court may exercise discretion in determining at which level the juvenile offender
shall be classified. The state recognizes that juveniles like D.R.—who was 16 years
old at the time of his offense and was classified at the lowest level of the offender-
registration scale (Tier I)—are entitled to a hearing at the end of disposition and
that the juvenile court cannot lower or terminate the classification at that time. But
the state argues that R.C. 2152.85(B)(1) permits the juvenile court to exercise its
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discretion and terminate the registration three years after the completion-of-
disposition hearing.
{¶ 28} The initial classification hearing is not being examined here. Nor
has it been challenged. We note that the discretion employed by a juvenile court at
the initial classification hearing serves a purpose different from the discretion
employed at the completion-of-disposition hearing. Under R.C. 2152.831, a
juvenile court exercises discretion to determine which classification level it will
initially impose. Part of the purpose of the completion-of-disposition hearing under
R.C. 2152.84(A)(1) is to “review the effectiveness of the disposition and of any
treatment.” That statute requires that the juvenile court assess the juvenile’s risk of
reoffending and “determine whether the prior classification of the child as a
juvenile registrant should be continued or terminated * * * or modified” under R.C.
2152.84(A)(2). The completion-of-disposition hearing is therefore built on the
juvenile court’s individualized risk assessment of the juvenile’s potential to
reoffend and its determination of the effectiveness of the juvenile’s treatment.
{¶ 29} But for D.R.—who was 16 years old when he committed a sexually
oriented offense and who was initially classified as a Tier I offender—and similarly
situated juveniles, R.C. 2152.84(A)(2)(b) eliminates all judicial discretion and
renders any review of the effectiveness of treatment or risk of reoffense
meaningless. D.R.’s Tier I classification, which constitutes a punishment for his
juvenile delinquency, see State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374,
952 N.E.2d 1108, ¶ 10-21, is continued into his adulthood automatically.
{¶ 30} Although the registration and notification procedures may have been
harsher in In re C.P. than those at issue today, it was the automatic nature of the
process in that case that offended due process. 131 Ohio St.3d 513, 2012-Ohio-
1446, 967 N.E.2d 729, at ¶ 85. R.C. 2152.84(A)(2)(b) is no different in this respect.
And just as we have held that it is constitutional for registration to continue into
adulthood for 13- and 14-year-old offenders so long as the court makes that
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determination on an individualized basis, see In re D.S., 146 Ohio St.3d 182, 2016-
Ohio-1027, 54 N.E.3d 1184, at ¶ 36-37, we conclude that the same individualized
determination is necessary for registration to continue into adulthood for 16- and
17-year-old offenders.
{¶ 31} Individualized assessments and judicial discretion are especially
necessary in cases such as D.R.’s. In a system designed to advance rehabilitation
over punishment and to shield juveniles from the stigma of their juvenile
delinquency, D.R.’s automatic, continued status as a juvenile-offender registrant
into adulthood is fundamentally unfair. Any decision to continue his classification
requires a grounded determination by a juvenile court that such a penalty is
warranted. R.C. 2152.84(A)(2)(b) provides no such mechanism.
{¶ 32} The fact that D.R. could request termination of his registrant status
after three years does little to mitigate the incongruities inherent in the process. The
juvenile-court magistrate who presided over D.R.’s completion-of-disposition
hearing found that D.R. had successfully completed all conditions the court had
imposed on him during his disposition, that he had not been adjudicated delinquent
for or convicted of any subsequent offenses, that he had successfully completed his
period of probation, that he had successfully completed sex-offender treatment, and
that he had graduated from high school and enrolled in college. D.R. was released
from probation at that time, and the juvenile court seemed prepared to also
terminate D.R.’s juvenile-offender classification.
{¶ 33} But at that critical moment, at the end of D.R.’s disposition, the
juvenile court had no discretion to determine whether D.R.’s classification should
be extended into adulthood—beyond the shield of the juvenile-justice system. R.C.
2152.84(A)(2)(b) required that continuation, with no judicial discretion permitted
to recognize D.R.’s rehabilitation. While D.R. had no right to immediate
termination of his classification at the end of his disposition, he also lost the right
to be treated any longer as a juvenile offender—the status given to him by the state.
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He was caught between the two goals of the juvenile-justice system—that is,
between being rehabilitated as a juvenile, which he was no longer, and entering
adulthood with a moniker that was meant to ensure public safety and accountability
for his wrongdoing as a juvenile. See R.C. 2151.01 and 2152.01. Because the two
goals do not perfectly align, D.R. received “the worst of both worlds,” Kent, 383
U.S. at 556, 86 S.Ct. 1045, 16 L.Ed.2d 84, under the fundamentally unfair
application of R.C. 2152.84(A)(2)(b) to his case.
{¶ 34} Because of D.R.’s age when he committed his sexually oriented
offense, the juvenile court was effectively prohibited by R.C. 2152.84(A)(2)(b)
from exercising its discretion at the completion-of-disposition hearing to either
continue D.R.’s Tier I classification beyond age 18 or terminate the classification
upon a finding of good cause, since D.R. had been adjudged sufficiently
rehabilitated. Given the special nature of juvenile-justice proceedings and the
interests at stake in those proceedings, fundamental fairness requires that the
juvenile court exercise discretion at the completion-of-disposition hearing to
determine whether the continuation of a Tier I classification that was initially
imposed on a juvenile who was 16 or 17 years old at the time of the offense is
warranted.
III. CONCLUSION
{¶ 35} Because R.C. 2152.84(A)(2)(b) did not allow the juvenile court to
exercise its discretion at the completion-of-disposition hearing and make its own
determination whether continuation of D.R.’s Tier I offender status into adulthood
was necessary or warranted, the statute is fundamentally unfair as applied to D.R.
and violates due process. The judgment of the First District Court of Appeals is
affirmed, and this cause is remanded to the juvenile court with instructions to hold
a new completion-of-disposition hearing and to determine whether D.R.’s Tier I
classification should be continued or terminated under R.C. 2152.84(A)(2).
Judgment affirmed
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and cause remanded.
O’CONNOR, C.J., and DONNELLY and STEWART, JJ., concur.
FISCHER, J., dissents, with an opinion.
DEWINE, J., dissents, with an opinion joined by KENNEDY, J.
_________________
FISCHER, J., dissenting.
{¶ 36} In this case, this court is asked to determine whether R.C. 2152.84
violates procedural-due-process rights under the Fourteenth Amendment to the
United States Constitution and Article I, Section 16 of the Ohio Constitution by
failing to give juvenile courts the discretion to declassify Tier I juvenile-offender
registrants at the completion-of-disposition stage. Because no existing protected
substantive right is at stake during the completion-of-disposition stage, I would
hold that the process provided by the General Assembly in R.C. 2152.84 regarding
Tier I juvenile-offender registrants complies with state and federal procedural due
process and is fundamentally fair. Therefore, I respectfully dissent.
{¶ 37} The United States Supreme Court has clearly stated that “[p]rocess
is not an end in itself” and that procedural due process serves “to protect a
substantive interest to which an individual has a legitimate claim of entitlement.”
Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983).
Thus, to find a violation of procedural due process—as the majority opinion does—
an individual must first identify an existing protected substantive right.2
{¶ 38} While appellant, D.R., identifies a number of interests at stake in a
completion-of-disposition hearing, neither the First District Court of Appeals nor
D.R. have identified an existing protected substantive right. While juveniles may
2. The majority opinion states that neither of the parties argued in favor of this analysis. But this
court must apply correct legal principles, regardless of the parties’ arguments. See Turner v.
CertainTeed Corp., 155 Ohio St.3d 149, 2018-Ohio-3869, 119 N.E.3d 1260, ¶ 11 (“We owe no
deference to the lower court’s decision, nor are we limited to choosing between the different
interpretations of the statute presented by the parties”).
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have a protected substantive right in not being unfairly classified as sex offenders,
D.R. was provided sufficient procedural protections at his initial sentencing and
classification hearing. But juveniles do not have a statutory or constitutional right
to have sex-offender classifications terminated immediately on the completion of
their disposition. See In re D.S., 146 Ohio St.3d 182, 2016-Ohio-1027, 54 N.E.3d
1184, ¶ 1 (“the imposition of classification upon release from a secure facility and
for a time period beyond the offender’s attainment of age 18 or 21 does not violate
the juvenile offender’s due-process rights or the prohibitions against double
jeopardy in the United States and Ohio Constitutions”). Nor do juveniles have a
statutory right to unlimited juvenile-court discretion over registration obligations.
See R.C. 2152.83(A)(1); In re D.S. at ¶ 13-14. And in Ohio, juvenile courts are
creatures of statute. See R.C. Chapter 2151; In re Z.R., 144 Ohio St.3d 380, 2015-
Ohio-3306, 44 N.E.3d 239, ¶ 14.
{¶ 39} The majority opinion never points to any specific constitutionally
protected right, and it never provides a deep-dive analysis to explain how the
continuation of the sex-offender classification is a protected liberty interest,
particularly in light of the fact that the Tier I designation in this case is not
permanent. Rather, it is mandatory for only three years. See R.C. 2152.85(B)(1).
Thus, the majority opinion’s implication that this designation is somehow a
permanent problem for D.R. is just not true. And this point is important because it
distinguishes this case from In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967
N.E.2d 729, a case on which the majority relies.
{¶ 40} In In re C.P., this court found a violation of due process because the
juvenile court lacked any discretion over the imposition of an automatic, lifetime,
adult punishment—mandatory sex-offender registration—for a juvenile offender.
Id. at ¶ 86. Thus, due-process rights are violated when there is an automatic
imposition of a significant penalty without affording any discretion to the juvenile
court. Id. at ¶ 77-78 (concluding that the automatic imposition of a lifetime
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punishment, without an opportunity for reconsideration for 25 years and without
affording any discretion to the juvenile court, is fundamentally unfair). That is not
the situation in the case at bar.
{¶ 41} This case is more similar to In re D.S., 146 Ohio St.3d 182, 2016-
Ohio-1027, 54 N.E.3d 1184. In that case, D.S. argued that his due-process rights
were violated when a juvenile court imposed a juvenile-sex-offender classification
on him that would continue past the age of majority. This court held that “[w]hat
process is due depends on considerations of fundamental fairness in a particular
situation,” id. at ¶ 28, and that the punishment imposed on D.S. was distinguishable
from the irrevocable, automatic, lifetime classification that was held to be a
violation of due process in In re C.P., In re D.S. at ¶ 32. This court held that the
classification at issue in In re D.S. did not violate due process, because the juvenile
court maintained sufficient discretion in determining the sentence, setting the
original classification, and later reviewing the classification. Id. at ¶ 33-36.
{¶ 42} Likewise, when viewing the statutory scheme as a whole in this case,
the juvenile court maintains sufficient discretion regarding tier classification for
individuals like D.R. Therefore, the statutory scheme meets the fundamental-
fairness requirements of due process. First, under R.C. 2152.83, the juvenile court
has discretion to determine the tier in which the juvenile offender will be placed
initially. Second, under R.C. 2152.85(B)(1), the juvenile court has discretion to
“declassify” individuals like D.R. a mere three years after the completion-of-
disposition hearing. Appellee, the state, is correct that the scheme in this case is
distinctly different from the scheme that was found unconstitutional by this court
in In re C.P.
{¶ 43} Here, each of the alleged protected interests identified by D.R. are
given sufficient consideration throughout the classification process set forth in R.C.
Chapter 2152. The fact that he could not be “declassified” at the completion-of-
disposition stage is a policy choice made by the General Assembly. The legislature
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has determined it to be appropriate that older juvenile offenders—those who were
16 or 17 years old at the time of the offense and who will necessarily have received
less treatment and supervision than younger offenders who the juvenile court can
oversee for many years—should have to wait just a few years to be “declassified.”
{¶ 44} One may question the wisdom of the General Assembly in creating
such a policy, but because the policy provides sufficient procedural protections and
does not run afoul of fundamental-fairness requirements, it is not for this court to
judge whether the policy is a good one. Maybe the policy should be reviewed;
maybe not. This court, however, lacks the constitutional authority to impose its
own policy views on the citizens of Ohio and must leave that determination to the
legislative branch. See Cleveland v. State, 157 Ohio St.3d 330, 2019-Ohio-3820,
136 N.E.3d 466, ¶ 40; Toledo v. State, 154 Ohio St.3d 41, 2018-Ohio-2358, 110
N.E.3d 1257, ¶ 31.
{¶ 45} Indeed, to adopt the First District’s position below, as the majority
opinion does, ultimately requires this court to legislate from the bench. The court
of appeals remanded the case for a new completion-of-disposition hearing to allow
the juvenile court to exercise discretion to continue D.R.’s Tier I juvenile-offender-
registrant classification or to “declassify” him. 2021-Ohio-1797, 173 N.E.3d 103,
¶ 17. In affirming the judgment of the First District, the majority opinion
effectively amends R.C. 2152.84 to provide juvenile courts the option of
“declassifying” Tier I juvenile-offender registrants at the completion-of-disposition
stage. However, without an existing protected substantive right at issue, this court
should reverse the court below to protect the separation of powers inherent in
Ohio’s Constitution. See State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,
933 N.E.2d 753.
{¶ 46} For these reasons, I would hold that the process provided by the
legislature in R.C. 2152.84 regarding Tier I juvenile-offender registrants complies
with state and federal due process and is fundamentally fair. Therefore, I dissent.
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_________________
DEWINE, J., dissenting.
{¶ 47} The Ohio legislature passed a law that requires all 16- and 17-year-
olds who commit sex crimes to register as sex offenders for at least three years after
their juvenile cases end. The majority says that this law is unconstitutional because
it violates the procedural-due-process rights of these juveniles under the United
States Constitution. The majority’s determination that the law violates the federal
constitution is wrong. But perhaps one shouldn’t be surprised: the majority’s
insistence that the claim be analyzed under the rubric of procedural due process
reveals its fundamental misunderstanding of this body of constitutional law.
Background
{¶ 48} Under the Adam Walsh Act, juveniles of a certain age who commit
sex offenses are designated as sex offenders. See 2007 Am.Sub.S.B. No. 10. The
juvenile court sets the juvenile offender’s classification level, which determines
how often he must register as a sex offender. R.C. 2152.83(A)(1). Different rules
apply depending on the age of the juvenile at the time of the offense. Here, we deal
with the rules for those juveniles who committed a sexually oriented offense at age
16 or 17. Once a juvenile offender completes his disposition (essentially, the
sentence imposed by the juvenile court), the court may reduce the offender’s
classification level, but the court cannot completely remove the sex-offender
classification at that time. R.C. 2152.84(A)(2). The first time the classification
may be removed is at the offender’s initial review hearing, which, if requested by
the juvenile, occurs three years after the completion of disposition. R.C. 2152.85.
In other words, the statutory scheme creates a blanket rule that all juveniles who
commit sex offenses when they are 16 or 17 years old must register as a sex offender
for at least three years after the completion of their disposition.
{¶ 49} D.R. was 16 years old at the time of his offense. The juvenile court
classified him as a Tier I sex offender, which is the tier that imposes the fewest
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registration obligations. Once D.R. completed his juvenile disposition, he asked
the juvenile-court judge to remove his sex-offender classification. But, of course,
the court did not have authority to remove the classification at that particular time,
see R.C. 2152.84(A)(2), so the judge denied the motion.
{¶ 50} D.R. appealed, arguing that the statutory scheme is unconstitutional
because it does not allow the juvenile court to remove his classification until three
years after the completion of his disposition. The First District agreed, holding that
the statute violated D.R.’s procedural-due-process rights under the United States
and Ohio Constitutions.3 2021-Ohio-1797, 173 N.E.3d 103, ¶ 8-9, 16. In doing so,
the First District noted that this court has treated the federal and state provisions as
equivalent. Id. at ¶ 9, citing State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956,
83 N.E.3d 883, ¶ 15 (“Aalim II”). D.R. has not advanced any argument that the
Due Course of Law Clause under Article I, Section 16 of the Ohio Constitution
provides different due-process protections than its federal counterpart, so I will
confine my analysis to the federal provision.
{¶ 51} The majority now affirms, following the same analysis as the First
District. It concludes that D.R.’s procedural-due-process rights are violated by the
law requiring D.R. to register as a sex offender for at least three years following the
end of his disposition. In the majority’s view, the law is constitutionally infirm
because it does not allow a judge to end D.R.’s sex-offender-registration
requirements early.
Procedural Due Process vs. Substantive Due Process
{¶ 52} The astute reader may already be confused. What I have described
is a substantive-due-process claim. Yet both the majority and the First District
granted relief under the procedural component of the Due Process Clause. Because
3. Because the First District found a violation of D.R.’s procedural-due-process rights, it did not
reach D.R.’s arguments that the law violated his right to substantive due process or the constitutional
protection against cruel and unusual punishment under the United States and Ohio Constitutions. In
re D.R., 2021-Ohio-1797, 173 N.E.3d 103, ¶ 16.
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January Term, 2022
the majority doesn’t seem to understand the difference between the two types of
due-process analysis, let me provide the type of overview a law student might
receive in a first-year constitutional-law class.
{¶ 53} The text of the Due Process Clause is familiar enough. It provides
that no state shall “deprive any person of life, liberty, or property, without due
process of law.” Fourteenth Amendment to the U.S. Constitution, Section 1. While
on its face that provision would seem to deal only with the adequacy of procedures
employed by the government, the United States Supreme Court instructs that the
clause contains both a procedural and a substantive component. Procedural due
process is concerned with the adequacy of procedures used: it requires the
government “to follow appropriate procedures when its agents decide to ‘deprive
any person of life, liberty, or property.’ ” Daniels v. Williams, 474 U.S. 327, 331,
106 S.Ct. 662, 88 L.Ed.2d 662 (1986); see also Geoffrey R. Stone, et al.,
Constitutional Law, 953 (7th Ed.2013) (procedural due process implicates “the
question when the clause requires procedural safeguards to accompany substantive
choices”). When reviewing the procedures employed in juvenile-delinquency
proceedings, the Supreme Court has said that the applicable due-process standard
is fundamental fairness. McKeiver v. Pennsylvania, 403 U.S. 528, 543, 91 S.Ct.
1976, 29 L.Ed.2d 647 (1971) (plurality opinion), citing In re Gault, 387 U.S. 1, 87
S.Ct. 1428, 18 L.Ed.2d 527 (1967), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068,
25 L.Ed.2d 368 (1970).
{¶ 54} Substantive due process, on the other hand, reviews the content of a
legislative enactment. As the Supreme Court has explained, the substantive
component of the Due Process Clause “bar[s] certain government actions regardless
of the fairness of the procedures used to implement them.” Daniels at 331. When
reviewing a substantive-due-process challenge to a statutory requirement that
impairs a life, liberty, or property interest, courts ordinarily consider whether the
requirement is rationally related to a legitimate government objective. See, e.g.,
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SUPREME COURT OF OHIO
Reno v. Flores, 507 U.S. 292, 303, 305, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993);
Toledo v. Tellings, 114 Ohio St.3d 278, 2007-Ohio-3724, 871 N.E.2d 1152, ¶ 33.
When the right in question is a fundamental liberty interest, however, the state may
impair that interest only if the infringement is narrowly tailored to serve a
compelling governmental interest. Reno at 302.
{¶ 55} D.R.’s challenge obviously sounds in substantive due process. He is
not arguing that there has been some procedural unfairness in the way the
government has applied the law to him. He doesn’t like the law. He isn’t saying
that a decision-maker short-shrifted him by taking away his rights through a process
that was inadequate; he is saying that the legislature cannot pass a law that forces
every 16- and 17-year-old sex offender to register for three years after his juvenile
disposition ends.
{¶ 56} As a leading treatise explains,
When the legislature passes a law which affects a general class of
persons, those persons have all received procedural due process—
the legislative process. The challenges to such laws must be based
on their substantive compatibility with constitutional guarantees.
3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance
and Procedure, Section 17.8(c), 130 (5th Ed.2012); see also Stone, Constitutional
Law at 972 (for laws of general application, “[p]rocesses of representation are a
sufficient guarantee of legitimacy, thus serving the same ends as a hearing”). The
Supreme Court explained long ago that with regard to general statutes affecting
individuals, “[t]heir rights are protected in the only way that they can be in a
complex society, by their power, immediate or remote, over those who make the
rule.” Bi-Metallic Invest. Co. v. State Bd. of Equalization, 239 U.S. 441, 445, 36
S.Ct. 141, 60 L.Ed. 372 (1915).
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{¶ 57} Thus, while framed as a procedural-due-process challenge, D.R.’s
argument is aimed at the substance of the law itself.
D.R.’s procedural-due-process claim fails
{¶ 58} The United States Supreme Court has firmly rejected the attempt to
recast a substantive-due-process claim like D.R.’s under the procedural component
of the Due Process Clause. See Connecticut Dept. of Pub. Safety v. Doe, 538 U.S.
1, 7-8, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). D.R. contends that guarantees of
procedural due process require that instead of being subject to a blanket rule
maintaining his classification for three years after disposition, he should be entitled
to a hearing in which he can show that he no longer poses a threat to the public and
that his continued classification will not serve the governmental policies the law
was designed to carry out. This is almost precisely the argument that the Supreme
Court shot down in Connecticut Dept. of Pub. Safety.
{¶ 59} There, a convicted sex offender brought a procedural-due-process
challenge to a statute that required public disclosure of his registration information
based solely on his status as a sex offender, without affording him a hearing and an
individualized determination whether he was currently dangerous. The court
explained that procedural due process requires the government to provide an
opportunity to prove or disprove a particular fact only when that fact is relevant to
the legal inquiry at issue. Id. at 7, citing Wisconsin v. Constantineau, 400 U.S. 433,
91 S.Ct. 507, 27 L.Ed.2d 515 (1971), and Goss v. Lopez, 419 U.S. 565, 95 S.Ct.
729, 42 L.Ed.2d 725 (1975). Thus, the challenge failed, because “the fact that
respondent [sought] to prove—that he [was] not currently dangerous—[was] of no
consequence under Connecticut’s Megan’s Law.” Id.{¶ 60} The court elaborated on the distinction between procedural- and
substantive-due-process claims:
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Unless respondent can show that that substantive rule of law is
defective (by conflicting with a provision of the Constitution), any
hearing on current dangerousness is a bootless exercise. * * * States
are not barred by principles of “procedural due process” from
drawing such classifications. Such claims “must ultimately be
analyzed” in terms of substantive, not procedural, due process.
(Emphasis added in Michael H.) Id. at 7-8, quoting Michael H. v. Gerald D., 491
U.S. 110, 120-121, 109 S.Ct. 2333, 105 L.Ed. 2d 91 (1989) (plurality opinion).
Thus, the court held: “Plaintiffs who assert a right to a hearing under the Due
Process Clause must show that the facts they seek to establish in that hearing are
relevant under the statutory scheme.” Id. at 8; see also Bell v. Burson, 402 U.S.
535, 541-542, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (“a hearing which excludes
consideration of an element essential to the decision” is not meaningful for the
purposes of the Due Process Clause).
{¶ 61} In concurrence, Justice Scalia summed up why dressed-up
substantive-due-process claims like D.R.’s are bound to fail:
[E]ven if the requirements of Connecticut’s sex offender registration
law implicate a liberty interest of respondents, the categorical
abrogation of that liberty interest by a validly enacted statute
suffices to provide all the process that is “due”—just as a state law
providing that no one under the age of 16 may operate a motor
vehicle suffices to abrogate that liberty interest. Absent a claim
(which respondent has not made here) that the liberty interest in
question is so fundamental as to implicate so-called “substantive”
due process, a properly enacted law can eliminate it. That is
ultimately why, as the Court’s opinion demonstrates, a convicted
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January Term, 2022
sex offender has no more right to additional “process” enabling him
to establish that he is not dangerous than (in the analogous case just
suggested) a 15-year-old has a right to “process” enabling him to
establish that he is a safe driver.
Connecticut Dept. of Pub. Safety, 538 U.S. at 8-9, 123 S.Ct. 1160, 155 L.Ed.2d 98(2003) (Scalia, J., concurring).
{¶ 62} And that is the problem here. The law requires the court to continue
D.R.’s classification at the completion of his disposition, regardless of the threat he
currently poses to the public. The facts that D.R. wishes to have an opportunity to
prove—that he has been fully rehabilitated and is no longer a danger to others—are
irrelevant to his continued classification as a juvenile sex offender under the
statutory scheme.
{¶ 63} Indeed, following Connecticut Dept. of Pub. Safety, courts have
routinely rejected claims like D.R.’s that have been brought by other juveniles. See,
e.g., U.S. v. Juvenile Male, 670 F.3d 999, 1014 (9th Cir.2012) (“Additional process
is only necessary where it gives a sex offender the ability to prove or disprove facts
related to the applicability of the registration requirement”); Doe v. Michigan Dept.
of State Police, 490 F.3d 491, 502 (6th Cir.2007) (holding that Connecticut Dept.
of Pub. Safety “foreclosed any procedural due process claim” against automatic
registration for juvenile sex offenders); see also State v. N.R., 314 Kan. 98, 495
P.3d 16 (2021); State v. Eighth Judicial Dist. Court of the State of Nevada (Logan
D.), 129 Nev. 492, 306 P.3d 369 (2013); In re Z.B., 2008 S.D. 108, 757 N.W.2d
595 (2008); People in Interest of C.B.B., 75 P.3d 1148 (Colo.App.2003); In re J.R.,
341 Ill.App.3d 784, 793 N.E.2d 687 (Ill.App.2003).
{¶ 64} The General Assembly requires any 16- and 17-year-old who has
been adjudicated delinquent for committing a sexually oriented offense to be
classified as a sex offender for at least three years following the completion of his
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disposition. R.C. 2152.84(A)(2) and 2152.85. In other words, it is the offender’s
age and the fact of his adjudication that trigger the duty to register. And juvenile
offenders like D.R. have already been given “ ‘a procedurally safeguarded
opportunity to contest’ ” those facts through the adjudication process. Juvenile
Male at 1014, quoting Doe v. Tandeske, 361. F.3d 594, 596 (9th Cir.2004). No
additional process is required. Id. (“adequate procedural safeguards at the
conviction stage are sufficient to obviate the need for any additional process at the
registration stage”).
{¶ 65} Thus, D.R.’s procedural-due-process claim fails.
We should put out the dumpster fire that is our precedent
{¶ 66} So how could the First District and the majority make such a basic
mistake? Surely, they must understand the difference between substantive and
procedural due process, right? Well, the answer is that it is not entirely their fault.
This court has some poorly reasoned precedent out there. We ought to clean it up.
{¶ 67} The confusion originates in this court’s decision in In re C.P., 131
Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729. That case involved a due-
process challenge to another juvenile-sex-offender-registration statute. The law at
issue automatically imposed lifetime registration and notification requirements on
certain juvenile offenders. In reviewing the claim, the Fourth District Court of
Appeals properly concluded that C.P.’s challenge was brought under the
substantive component of the Due Process Clause and found no constitutional
violation. See In re C.P., 4th Dist. Athens No. 09CA41, 2010-Ohio-1484, ¶ 8-9,
16-17.
{¶ 68} But this court reversed and made a mess of things in the process.
Because the classification in question applied generally to all juveniles convicted
of certain charges, the challenge obviously invoked the substantive component of
the Due Process Clause. But rather than evaluate C.P.’s claim under substantive-
due-process standards, this court applied a procedural-due-process standard. This
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January Term, 2022
court adopted the United States Supreme Court’s procedural-due-process standard
of “fundamental fairness,” which was developed to address the adequacy of
procedures employed in juvenile proceedings. See McKeiver, 403 U.S. at 541-543,
91 S.Ct. 1976, 29 L.Ed.2d 647 (plurality opinion), citing In re Gault, 387 U.S. 1,
87 S.Ct. 1428, 18 L.Ed.2d 527, and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25
L.Ed.2d 368. It then misused this standard to address the substantive fairness of a
generally applicable law enacted by the General Assembly.
{¶ 69} In re C.P. was obviously wrongly decided: it used a procedural-due-
process standard to strike down a generalized enactment. But this court has never
quite said so. We attempted to distinguish In re C.P. in In re D.S., 146 Ohio St.3d
182, 2016-Ohio-1027, 54 N.E.3d 1184, ¶ 32-37, but we stopped well short of
rejecting its faulty logic.
{¶ 70} In State v. Aalim, 150 Ohio St. 3d 463, 2016-Ohio-8278, 83 N.E.3d
862 (“Aalim I”), this court nearly made the same mistake as the majority does here.
In that case, this court initially sought to incorporate the procedural-due-process
standard of fundamental fairness into the Ohio Constitution and use it to strike
down a generally applicable statute that required that juveniles who had committed
certain offenses be bound over to the adult court automatically. Id. at ¶ 2, 18-20.
But fortunately, the court recognized its error and reconsidered its erroneous
judgment. On reconsideration, the lead opinion recognized that procedural due
process was satisfied because Aalim had received a hearing, at which he was
represented by counsel, on the only factors that were relevant under the statute: his
age and whether there was probable cause to believe he had committed the offense.
Aalim II, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, at ¶ 27. A
concurring opinion elaborated on the confusion in our prior case law, explaining
that a “challenge to a generalized legislative determination—for example, that all
juveniles of a certain age who are charged with certain qualifying crimes must be
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tried in adult court—is made under the substantive component of the Due Process
Clause.” Id. at ¶ 41 (DeWine, J., concurring).
{¶ 71} One might have thought that Aalim II would have eliminated the
confusion caused by In re C.P. But apparently not. Here, the First District relied
heavily on In re C.P., and the majority breathes new life into its demonstrably
erroneous analysis today.
{¶ 72} We really messed up when we decided In re C.P., and we should say
so. We should realign our interpretation of the Fourteenth Amendment to the
United States Constitution with that of the United States Supreme Court and make
clear that substantive-due-process claims are to be assessed under substantive-due-
process standards. The Supremacy Clause of the United States Constitution leaves
us no other option. U.S. Constitution, Article VI, cl. 2; Martin v. Hunter’s Lessee,
14 U.S. 304, 340-341, 4 L.Ed. 97 (1816).
Conclusion
{¶ 73} One might fairly criticize the wisdom of the statutory registration
requirement at issue in this case. Perhaps it should be changed. But it is not our
place to make such policy choices for the state.
{¶ 74} The majority’s decision today perpetuates a glaring error in our due-
process precedent and erroneously invalidates a duly enacted statute along the way.
I would bring our due-process analysis back in line with the United States Supreme
Court and conclude that there is no procedural-due-process violation in this case. I
would therefore reverse the contrary judgment of the First District Court of Appeals
and remand the case to that court for it to consider D.R.’s remaining assignments
of error.
KENNEDY, J., concurs in the foregoing opinion.
_________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for appellant.
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January Term, 2022
Raymond T. Faller, Hamilton County Public Defender, and Jessica Moss,
Assistant Public Defender, for appellee.
Steven L. Taylor, urging reversal for amicus curiae Ohio Prosecuting
Attorneys Association.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and
Samuel C. Peterson, Deputy Solicitor General, urging reversal for amicus curiae
Ohio Attorney General Dave Yost.
Timothy Young, Ohio Public Defender, and Lauren Hammersmith and
Katherine Sato, Assistant Public Defenders, urging affirmance for amicus curiae
Office of the Ohio Public Defender.
_________________
29