DocketNumber: No. 21374.
Citation Numbers: 871 N.E.2d 1264, 171 Ohio App. 3d 563, 2007 Ohio 1052
Judges: FAIN, Judge.
Filed Date: 3/9/2007
Status: Precedential
Modified Date: 1/13/2023
{¶ 1} Defendant-appellant, James Mutter, appeals from an order requiring him to relocate his residence so that it is not within 1,000 feet of a school, which is prohibited by R.C.
{¶ 2} The state contends, first, that Mutter cannot raise the issue of the constitutionality of the statute, because he has failed to serve the Ohio Attorney General with notice, as required by R.C.
{¶ 3} The state contends that application of R.C.
{¶ 5} R.C.
{¶ 6} In November 2004, the Montgomery County Common Pleas Court Adult Probation Department notified Mutter that he was in violation of R.C.
{¶ 7} At the hearing on the notice, at which Mutter was represented by counsel, the facts were not in dispute, but Mutter argued that R.C.
{¶ 9} "The trial court erred by ordering the defendant to relocate his residence, pursuant to R.C.
{¶ 10} We infer this assignment of error from the contents of Mutter's brief, which lays out in some detail the financial difficulties he faces, the poor health of himself and his spouse, who lives with him, and whom he supports, and the expense of their medications. We agree with the state that Mutter may not raise this issue on appeal, since he did not do so in the trial court, thereby depriving the state of any opportunity it might have had to develop these factual issues favorably to the state.
{¶ 11} Mutter's sole assignment of error is overruled.
{¶ 13} We gave the state an opportunity to file a supplemental brief on this issue, and it has done so.
{¶ 15} The Ohio Supreme Court has declared that the requirement of notification of the Ohio Attorney General set forth in R.C.
{¶ 17} The state first argues that the fundamental right of property, described in Norwood v.Horney,
{¶ 18} "The rights related to property, i.e., to acquire, use, enjoy, and dispose of property,Buchanan v. Warley (1917),
{¶ 19} "Believed to be derived from a higher authority and natural law, property rights were so sacred that they could not be entrusted lightly to `the uncertain virtue of those who govern.' Parham v. Justices of Decatur Cty.Inferior Court (Ga. 1851),
{¶ 20} As the emphasized words clearly declare, it is not merely the technical ownership of property that enjoys fundamental constitutional protection, but the *Page 568 right of the use and enjoyment of property, which is part of the bundle of ownership rights. In our view, this would clearly include the right to reside in residential property.
{¶ 21} To come within the compass of the retroactive laws provision of Section 28, Article II, it is only necessary that the right be substantive; the right need not be substantial. In this context, "substantive" is used in contrast to "remedial," but remedial in the sense that "remedial laws 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." State v. Cook (1998),
{¶ 22} Unfortunately, the word "remedial" has a different meaning in the context of the jurisprudence surrounding the more limited concept of an ex post facto law, forbidden by Section 9, Article
{¶ 23} In the context of the retroactive laws provision of Section
{¶ 24} Viewed in this light, we have no difficulty in continuing to view an owner and occupier of residential property as possessing a substantive right to continue to ownand occupy that property. That right, venerable though it may be, may be taken away prospectively. Thus, we have no difficulty with the application of R.C.
{¶ 25} The state cites State v. Cupp, Montgomery App. Nos. 21176 and 21348,
{¶ 26} Finally, the state cites State v.Goode (Mar. 27, 1998), Miami App. No. 97-CA-14,
Judgment reversed.
*Page 570GRADY and DONOVAN, JJ., concur.