DocketNumber: No. 08AP-521.
Citation Numbers: 2009 Ohio 1550
Judges: KLATT, J.
Filed Date: 3/31/2009
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} On August 24, 2005, appellant, represented by counsel, entered a guilty plea to one count of importuning in violation of R.C.
{¶ 3} In 2003, the Ohio General Assembly enacted R.C.
{¶ 4} On March 29, 2007, appellee filed a complaint against appellant pursuant to former R.C.
{¶ 5} Appellee responded with a motion for summary judgment, filed January 22, 2008, supported by, inter alia, a certified copy of the trial court's entry on the underlying conviction and an affidavit from a deputy auditor in the Franklin County Auditor's Office, *Page 3 Real Estate Division, stating that Dana Elementary is approximately 625 feet from 303 South Yale Avenue.
{¶ 6} Appellant answered appellee's motion with a memorandum contra and cross-motion for summary judgment, raising four issues. Appellant first argued that the deputy auditor improperly utilized the straight line method to measure the distance from appellant's residence to Dana Elementary. Appellant also argued that the deputy auditor's testimony alone was insufficient to establish the distance between appellant's residence and the school premises. In addition, appellant contended that appellee failed to establish that Dana Elementary is a "school premises" for purposes of former R.C.
{¶ 7} In a decision filed May 9, 2008, the trial court struck appellant's cross-motion for summary judgment as untimely; however, the court considered the arguments presented as a timely memorandum contra. The court concluded that appellee established all the necessary elements of its case under R.C.
{¶ 8} By judgment entry filed May 22, 2008, the trial court ordered, adjudged, and decreed that appellant was in violation of R.C.
{¶ 9} Appellant has appealed, assigning the following errors:
[1.] The trial court erred in granting the appellee's motion for summary judgment because the trial court used the wrong standard of measurement.
[2.] The trial court erred in granting the appellee's motion for summary judgment because the appellee has not shown that Dana Elementary is a "school premises" as defined by statute and is therefore not entitled to judgment as a matter of law.
[3.] The trial court erred in granting the appellee's motion for summary judgment because R.C.
2950.034 [formerly 2950.031] is unconstitutional and violates the appellant's due process rights under both the state and federal constitutions.
{¶ 10} Appellant's three assignments of error contend that the trial court erred in granting appellee's motion for summary judgment. Accordingly, we set forth the familiar standard governing summary judgment. Appellate review of summary judgment is de novo. Helton v.Scioto Cty. Bd. of Commrs. (1997),
{¶ 11} The party seeking summary judgment initially bears the burden of informing the trial court of the basis for the motion and identifying portions of the record demonstrating an absence of genuine issues of material fact as to the essential elements *Page 5
of the nonmoving party's claims. Dresher v. Burt (1996),
{¶ 12} Pursuant to Civ. R. 56(C), only certain evidence may be considered by the court when contemplating a motion for summary judgment. Specifically, the court may consider only timely filed "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact[.]" Civ. R. 56(E). Supporting and opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence and must affirmatively demonstrate that the affiant is competent to testify to the matters stated in the affidavit. Civ. R. 56(E).
{¶ 13} Former R.C.
{¶ 14} Appellant's first assignment of error contends the trial court utilized the wrong standard of measurement in calculating the distance between appellant's residence and Dana Elementary. In particular, appellant contends the trial court improperly determined that the distance should be measured in a straight line. Appellant maintains that the distance should be measured along a reasonably navigable path. We note that former R.C.
{¶ 15} Appellee supported its motion for summary judgment with the affidavit of Anthony Frissora, a deputy auditor employed for over 15 years in the Real Estate Division of the Franklin County Auditor's Officer. (Frissora Affidavit ¶ 3-4). Frissora attested that he utilized a global imaging software ("GIS") tax map database maintained by the auditor's office to determine the distance between Dana Elementary and appellant's residence. He further stated that he is familiar with the technical specifications and capabilities of the GIS tax map database. (Aff. ¶ 5). He also testified that the GIS tax map database complies with the United States National Map Accuracy Standards and may be utilized to determine the distance between two parcels of property. (Aff. ¶ 6-7). Frissora also stated that the GIS tax map database may also be utilized to list all properties within a specified distance of an identified parcel of property. (Aff. ¶ 8). He further attested that the GIS tax map database can determine the distance between two points within a margin of error of two and one-half feet. (Aff. ¶ 8.) Utilizing the GIS tax map database, Frissora determined *Page 7 that Dana Elementary is approximately 625 feet from appellant's residence at 303 South Yale Avenue. (Aff. ¶ 12.)
{¶ 16} In State v. Franklin,
{¶ 17} A geographical information systems specialist employed by the city for over ten years also testified for the state. The specialist stated that one of the design functions of the software utilized by the police officer was to determine distances between two points. He further testified that the software was utilized extensively to measure distances and that he had in the past confirmed mechanically that the system was accurate to within three feet.
{¶ 18} On appeal, the defendant argued that the state failed to prove that the offenses were committed within 1,000 feet of a school premises. More particularly, the defendant argued that proof that a drug offense occurred within 1,000 feet of a school could be established only by lay testimony of a police officer if the officer physically measured the distance with a measuring reel or automobile odometer and personally testified from personal experience of having done so. The defendant cited numerous cases employing these methods for determining distance from a school.
{¶ 19} The court rejected the defendant's argument, noting that "there are other ways to determine the distance between two points, including use of a GIS." Id. at ¶ 10. *Page 8 In particular, the court noted that "global imaging devices are widely used and generally considered to be reliable." Id. at ¶ 11, citing Geographic Information Systems: Coming to a Courtroom Near You (2005), 34 U. Colo. L.Rev. 11, 17. The court found that the state's evidence was sufficient to prove that the drug transactions occurred within 1,000 feet of a school premises. The court noted that the defendant had the opportunity to discredit or refute the state's evidence by calling into question the reliability or veracity of the computer software employed by the officer, but failed to do so.
{¶ 20} In this case, appellee submitted proper Civ. R. 56(C) evidentiary materials, i.e., Frissora's affidavit, establishing that appellant's residence is located within 1,000 feet of Dana Elementary as calculated by a GIS tax map database used extensively to measure distance and which is accurate to within two and one-half feet. As theFranklin court determined, global imaging devices are reliable and widely utilized to measure distance. Appellant's submission of the Frissora affidavit thus satisfied its initial burden underDresher. The burden then shifted to appellee to submit evidentiary material demonstrating a genuine dispute over a material fact.Dresher.
{¶ 21} Appellant did not submit any Civ. R. 56(C) evidentiary materials challenging use of the GIS tax map database as a method of measurement or the accuracy of the measurement obtained through its use. Furthermore, appellant failed to submit any Civ. R. 56(C) evidentiary materials establishing the distance as measured by the method he proposes. Although he contended that the relevant distance must be measured along a reasonably navigable path, he did not submit any Civ. R. 56(C) evidentiary materials establishing that such distance is greater than 1,000 feet. Accordingly, appellant failed to establish a genuine issue of material fact as to whether his residence is located within *Page 9 1,000 feet of Dana Elementary; accordingly, appellee was entitled to summary judgment on this issue. The first assignment of error is overuled.
{¶ 22} Appellant's second assignment of error contends that appellee failed to establish that Dana Elementary is a school premises for purposes of former R.C.
{¶ 23} Appellant's third assignment of error contends that former R.C.
{¶ 24} Initially, we note that statutes enjoy a strong presumption of constitutionality. "An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible." State ex rel.Dickman v. Defenbacher (1955),
{¶ 25} Courts employ one of two tests in assessing the constitutionality of a statute under the Due Process Clause: strict scrutiny or rational-basis review. When a state enacts legislation that infringes fundamental rights, courts review such law under a strict scrutiny test and uphold it only when it is "narrowly tailored to serve a compelling state interest." Reno v. Flores (1993),
{¶ 26} Accordingly, we must first determine whether former R.C.
{¶ 27} The United States Supreme Court has recognized that fundamental rights include those guaranteed by the Bill of Rights as well as certain liberty and privacy interests implicit in the Due Process Clause and the penumbra of constitutional rights. Id. at 720. These special liberty interests include "the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion." Id. (Citations omitted). The Court has also determined that the Due Process Clause protects an individual's right to refuse unwanted lifesaving medical treatment. Id., citing Cruzan v. Dir., Missouri Dept. of Health (1990),
{¶ 28} Appellant maintains that former R.C.
{¶ 29} Initially, we note that appellant failed to raise this particular argument in the trial court. Generally, a litigant must raise any argument asserting a statute's unconstitutionality in the trial court. State v. Samatar,
{¶ 30} Appellant failed to submit any Civ. R. 56(C) evidentiary materials establishing that he owns the South Yale Avenue property. In his answer, appellant admitted only that he is "a resident" of the South Yale Avenue address. (Answer ¶ 3). Although he did assert in paragraph 16 that "[R.C.] §
{¶ 31} In any event, although former R.C.
{¶ 32} We next consider appellant's claim that the statute impairs his fundamental right to "live where he wishes." Although the freedom to live where one wishes is certainly of utmost importance to any individual, it is not a fundamental interest entitled to the highest constitutional protection. In Doe v. Miller (C.A.8, 2005),
{¶ 33} Other courts considering residency restrictions similar to former R.C.
{¶ 34} In State v. Seering (Iowa 2005),
{¶ 35} Appellant has thus not established that the right to "live where he wishes" is "`deeply rooted in this Nation's history and tradition'" or "`implicit in the concept of ordered liberty,' such that `neither liberty nor justice would exist if [it] were sacrificed.'"Glucksberg, at 720-21 (citations omitted). Accordingly, appellant has not established that the right to "live where he wishes" is a fundamental right under either the federal or state Due Process Clause requiring strict scrutiny of Ohio's residency restriction. Appellant's interest in living "where he wishes" is, therefore, entitled only to rational-basis review.
{¶ 36} "Under the rational basis standard, we are to grant substantial deference to the predictive judgment of the General Assembly." State v.Williams (2000),
{¶ 37} There is no appellate authority within the state of Ohio bearing directly on the question before us, i.e., whether the residency restriction in former R.C.
R.C. Chapter
2950 does not offend substantive due process and equal protection as the statute is rationally related to a legitimate state interest, and there exist reasonable grounds for distinguishing between sexual predators and other offenders. * * * The legislature declared that its intent was to `protect the safety and general welfare of the people of this state.' R.C.2950.02 (B). Assuring public protection from sex offenses is a legitimate state interest. * * * Further, the legislature has concluded that sex offenders pose a high risk of recidivism and that the registration and notification requirements `clearly advance the legislature's stated goal of protecting the public.' Id. Because reasonable grounds exist for distinguishing between sexual predators and other offenders, R.C. Chapter2950 does not violate the Equal Protection and Due Process Clauses.
Id. at 163.
{¶ 38} The Randall court's analysis applies equally to a due process challenge to the residency restriction. There is no question that the state has a legitimate interest in protecting children from known sexually oriented offenders. The registration and notification laws, as well as the laws compelling a measurable distance between children and sex offenders, bear a rational relationship to this legitimate state interest and set forth a reasonable method of furthering that interest. As noted by the Leroy court, "it is reasonable to believe that a law that prohibits child sex offenders from living within [a *Page 17 measurable distance] of a school will reduce the amount of incidental contact child sex offenders have with the children attending that school and that consequently the opportunity for the child sex offenders to commit new sex offenses against those children will be reduced as well." Id. at 535. The law requiring sexually oriented offenders to reside a reasonable distance from a place where children assemble withstands constitutional scrutiny for the same reasons that registration and notification laws have withstood scrutiny. They are facially valid statutes reasonably designed to bring some measure of comfort to the citizens of Ohio.
{¶ 39} We are unpersuaded by appellant's argument that the residency restriction does not further the state's legitimate interest in protecting children and society from repeat sexually oriented offenders. Appellant maintains that empirical evidence demonstrates that the residency restriction does not address the majority of child sex abuse cases because those cases involve relatives or acquaintances. Appellant argues that the residency restriction does not hamper sexually oriented offenders from abusing family members and does not even restrict sexually oriented offenders from living with their previous victims. However, "`a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.'" Am. Assoc. of Univ. Professors, supra, at 58, quotingFed. Communications Comm. v. Beach Communications, Inc. (1993),
{¶ 40} For all these reasons, we hold that former R.C.
{¶ 41} Having overruled appellant's three assignments of error, we hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
FRENCH, P.J., and McGRATH, J., concur.
john-doe-i-on-their-own-behalf-and-as-representatives-of-the-class-of-all , 405 F.3d 700 ( 2005 )
State v. Seering , 701 N.W.2d 655 ( 2005 )
State v. Franklin , 2005 Ohio 6854 ( 2005 )
Palko v. Connecticut , 58 S. Ct. 149 ( 1937 )
Collins v. City of Harker Heights , 112 S. Ct. 1061 ( 1992 )
Federal Communications Commission v. Beach Communications, ... , 113 S. Ct. 2096 ( 1993 )