Archive for June 9, 2010

UPDATES, Wednesday June 9 : Ohio Esorn and Public Defender

June 9, 2010 Comments off

UPDATE, Wednesday June 9, (4:00 pm): spoke with an Ohio County Public Defender, Steve Brown of the Ohio Attorney General’s office and Ted Hart (Ohio AG Esorn Deputy Director of Media Relations) today.

The unnamed Ohio County Public Defender had no new information about when we can expect to see compliance action from the Attorney General and Sheriff Departments, but did talk to us about the Ohio Supreme Court decision (Bodyke vs, Ohio). As we had expected, he agrees that the Supreme Court basically bypassed looking at any of the Ex Post Facto, Double Jeopardy or other constitutional challenges in the Bodyke decision. He feels that this ‘Separation of Powers‘ issue really got under the skin of the Court, as was clear from watching the oral arguments. Courts do not like when Legislatures try to bypass their constitutional role. Therefore, these other constitutional arguments are still undecided at the Ohio Supreme Court level and could be brought back in other challenges.

As for the idea of pursuing some judicial order from the courts in order to force the hand of the local Sheriff Departments, he suggested that we wait 14-21 days before we pursue such course. As we all know, government is always slow and usually incompetent. This is why they have taken absolutely no action since last Thursday June 3rd. If we do not see any concrete action by the last week of June, he suggests that we contact our local Public Defender’s Offices and ask them about pursuing such legal action.

Steve Brown , of the Ohio Attorney General’s office still had “no time line” for when action will be taken by the A.G. office. This is the same story we got from Ted Hart, A.G.Deputy Director of Media Relations. I asked both why we cannot see at least some action being taken. Steve Brown’s office told me on Monday June 7th that he was in the process of sending out “Guidelines and FAQ’s to the county Sheriff Departments”, directing them as to what to do when invalidated registrants contact their offices.

I asked him today if they had been sent to Sheriff Departments. He said “no”.
I asked him when they would be sent. He replied that they “have no time line for anything”.

Shouldn’t the Ohio Attorney General’s office, at the very least, have a time line formulated a week after the Supreme Court ruling? Both of these two bureaucrats have told me repeatedly that letters will be sent to all those registrants who are affected by the ruling. When asked when these letters will be sent, neither would give us a date range. Steve Brown told me that his office is receiving many calls from citizens. Ted Hart said that his office was receiving very few calls from citizens about this re-classification process

Look …we all know that if the Supreme Court or Ohio Legislature had somehow instated some new registration requirement for sex offenders, they would miraculously be able to start the process immediately of updating their computer database and adding all the new registered sex offenders virtually overnight. But because they are not happy about this Court decision, they are acting like spoiled little children and dragging their feet on this, refusing to comply until forced to do so.

We spoke to two computer IT professionals (one of whom consults for the U.S. Federal Government) to ask them how long the process of updating such a database would take. Both gave the same answer: ” it can be done easily in an hour”.

This is why we all must call them daily to force them to take action and comply with the Ohio Supreme Court ruling. Anyone concerned about reforming sex offender laws must call, email or write to the Ohio Attorney General’ office daily until they agree to comply with the law.

Help be a watchdog:

Lesson: Separation of Powers

June 9, 2010 Comments off (Legal Information and Discussion For Students and Lay People):

Separation of Powers? Ohio Supreme Court Will Not Allow State Attorney General To Reclassify Sex Offenders Already Classified By Court Order.

In law school, I took a class involving issues of federalism and separation of powers. On my exam, the professor asked about constitutional ways one branch can infringe on the other branches even though it breaks the spirit of the Constitution. For example, what is to stop the President of the United States, as commander in chief, from marching the army on Congress? In any event, the judicial branch has little at its disposal to check the other branches. Granted, the judiciary can declare a law unconstitutional, but what if the other branches ignore the judiciary. What if the judiciary claims that the separation of powers prevents the other branches from infringing on the judiciary’s domain? That is what happened in the following case. Should the judiciary dictate to other branches that it is infringing on its area of power?

Read the opinion Ohio v. Bodyke

Like every state, Ohio passed a sex offender registration law in the wake of the death of Megan Kanka in New Jersey. Under that law, Ohio classified sex offenders into three different categories, and the offender’s requirements with respect to registration and related issue depends on the classification. Later, the Federal government, in order to unify sex offender registration law, required states, in order to receive federal funds to fight crime, to pass a uniform registration and classification law.

Ohio complied and passed its own Adam Walsh law. The law also had three different classifications of sex offenders. The requirements with respect to each classification differed from what the previous law required. Additionally, the law designated the Ohio Attorney General to reclassify sex offenders who had been classified after the adjudication under the previous law. Reclassified individuals, who are now subject to more stringent laws, sued and claimed that the reclassification violated the ex post facto clause of the Ohio Constitution. Instead of addressing the ex post facto argument (since courts have continuously upheld sex offender registration laws against ex post facto challenges), the Ohio Supreme Court invalidated those sections of the law reclassifying sex offenders because it violated principles of separation of powers.

Even though the Ohio Constitution does not specifically address the separation of powers, the doctrine is implicitly embedded in the framework of the Constitution. The essential principle underlying the policy of the division of powers of government into three departments is that powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments, and further that none of them ought to possess directly or indirectly an overruling influence over the others.

When the judiciary is going to assert that another branch is infringing on its power, it must do so sparingly. Still, the courts must guard against the other branches from reviewing judicial decisions or reopening final judgments. The Ohio law infringes this basic tenet of the separation of powers.

Individuals had already been classified as sex offenders through court actions. These classifications result in different registration requirements for these individuals. It also allows for how long one must register as a sex offender. The reclassification puts a greater burden on these individuals, and all contrary to a court order. As the Court notes:

The legislative attempt to reopen journalized final judgments imposing registration and community notification requirements on offenders so that new requirements may be imposed suffers the same constitutional infirmity. It does not matter that the legislature has the authority to enact or amend laws requiring sex offenders to register or that the current Sex Offender Act does not order the courts to reopen final judgments. The fact remains that the General Assembly cannot annul, reverse, or modify a judgment of a court already rendered.

Instead of declaring the entire Adam Walsh law unconstitutional, the Court just severed those provisions giving the Attorney General the power to reclassify sex offenders from the bill and invalidate them as unconstitutional. Thus, sex offenders classified under the old law will be classified as such.