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Ohio Supremes Ban Retroactive Use of Sex Offender Law

July 14, 2011 Comments off

Court: Sex offender law not retroactive

COLUMBUS, Ohio, July 13 (UPI) — A law on registration and community notification for released sex offenders cannot be applied retroactively, the Ohio Supreme Court said Wednesday.

The justices ruled 5-2 the 2007 Ohio Adam Walsh Law can only be applied to offenders who committed their crimes after it became effective, The Columbus (Ohio) Dispatch reported. The court reversed a decision by a state appeals court.

“The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders,” Justice Paul Pfeifer said. “It may not, however, consistent with the Ohio Constitution, ‘impose new or additional burdens, duties, obligations, or liabilities as to a past transaction.'”

Justice Terrence O’Donnell in the minority opinion said the court has said in previous rulings that requiring sex offenders to register and providing community notification in some cases are civil sanctions, not criminal penalties.

Ohio Supremes Ban Retroactive Use of Sex Offender Law: Hundreds of previously-convicted sex offenders will be affected

The Ohio Supreme Court, in a ruling published today, has declared that imposing “enhanced” sex offender registration and community notification requirements on previously-convicted sex offenders, as required by the Ohio Adam Walsh Act (AWA) which was contained in 2007’s Senate Bill (SB) 10 is a violation of the Ohio Constitution.

“When the General Assembly adopted the AWA by enacting 2007 S.B. 10,” stated a Ohio Supreme Court press release, “it included statutory language requiring that, regardless of the date on which a defendant’s crime was committed, state courts sentencing sex offenders on or after July 1, 2007 must apply a new three-tiered AWA offender classification scheme and must include in the defendant’s sentence registration and community notification requirements set forth in the AWA that are more severe than similar provisions in the prior, Megan’s Law, version of the statute.”

The decision was based on Article II, Sec. 28 of the Ohio Constitution, which states in part, “The general assembly shall have no power to pass retroactive laws.” Similar wording can be found in the U.S. Constitution as well, where one clause in Article I, Sec. 9 reads, “No Bill of Attainder or ex post facto [“after the fact”] Law shall be passed.”

The case at issue was State v. George Williams, where the defendant had been convicted for engaging in sexual conduct with a minor—conduct which took place prior to July, 2007, although Williams was convicted on the charges in December, 2007, after SB 10 had been passed.

“Prior to his sentencing hearing,” the Supreme Court’s press release stated, “Williams entered a motion asking the trial court to sentence him under the Megan’s Law sex offender classification scheme that was in effect on the date of his offense, rather than under the AWA classification scheme. The trial court overruled Williams’ motion. Pursuant to the AWA he was classified as a Tier II offender, which required him to register with the sheriff in his county of residence, and in any other county in which he worked or attended school, every 180 days for the next 25 years.” Under Megan’s Law, his registration and reporting requirements would have been limited to 10 years.

Williams appealed that ruling under the ex post facto/retroactivity clauses of both the Ohio and U.S. Constitutions, as well as arguing violation of the U.S. Constitution’s due process clauses and its ban on double jeopardy.

Another portion of the AWA, which would have allowed the Ohio Attorney General to reclassify sex offenders without the necessity of judicial approval, was overturned by the same court just over one year ago.

The Ohio Supreme Court’s 5-2 decision, authored by Justice Paul E. Pfeifer, overturning the AWA was largely based on the fact that while several state decisions had held that the registration requirements of Megan’s Law were considered remedial rather than punitive in nature, “Following the enactment of SB 10, all doubt has been removed: R.C. Chapter 2950 [the AWA] is punitive,” Justice Pfeifer stated in the majority opinion. “The statutory scheme has changed dramatically since this court described (in [State v.] Cook) the registration process imposed on sex offenders as an inconvenience ‘comparable to renewing a driver’s license.’ … And it has changed markedly since this court concluded in [State v.] Ferguson that R.C. Chapter 2950 was remedial…

“Based on these significant changes to the statutory scheme governing sex offenders, we are no longer convinced that R.C. Chapter 2950 is remedial, even though some elements of it remain remedial…,” the high court concluded. “We conclude that SB 10, as applied to Williams and any other sex offender who committed an offense prior to the enactment of SB 10, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws.”

“The Ohio Supreme Court decision in Williams does a really good job of explaining how in light of these internet websites that we now have, and community notification and criminal penalties attaching and more periodic registration in person with a sheriff there, all of these measures are looking more and more and more like punishment and less and less and less like a driver’s license,” one attorney analyzed, “and as that shift has happened, it’s become more like criminal punishment, and really, the Ohio Supreme Court is the first top court in a state to characterize it that way.”

Kinsley said that through her discovery motions in the case, it had been revealed that hundreds of people in Ohio will be affected by today’s decision, and will now be able to get on with their lives without the stigma of appearing on sex offender websites.

Court: Law applied to convicted sex offenders violates constitution

The legislature’s attempt four years ago to apply a new law to already-convicted sexual offenders violated the Ohio Constitution, the state Supreme Court ruled today.

Imposing enhanced registration and community notification requirements in the 2007 Ohio Adam Walsh Act against defendants whose crimes were committed before the effective date of that law violates a constitutional prohibition on the General Assembly enacting retroactive laws, the justices declared.

The 5-2 decision, which reversed a ruling by the 12th District Court of Appeals, was written by Justice Paul E. Pfeifer.

“The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders,” Pfeifer said. “It may not, however, consistent with the Ohio Constitution, ‘impose new or additional burdens, duties, obligations, or liabilities as to a past transaction.’ “

Joining the majority opinion were Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger and Yvette McGee Brown.

Justice Terrence O’Donnell authored the dissenting opinion, which was joined by Justice Robert R. Cupp.

Today’s decision came on the appeal of George Williams of Warren County, convicted in December 2007 for engaging in sexual conduct with a minor an offense that occurred before the Adam Walsh Act took effect. Williams asked the judge to sentence him under the previous sex offender classification setup, known as Megan’s Law.

The judge rejected that motion and classified him under the more stringent Adam Walsh Act as a Tier II offender, which required him to register with the sheriff in his home county and in any other county in which he worked or attended school, every 180 days for the ensuing 25 years.

Williams appealed, but was turned down by the 12th District Court of Appeals.

Pfeifer noted that in earlier Supreme Court decisions on previous changes in the sex offender law, justices upheld the changes because they were more remedial than punitive, and thus the constitutional ban on retroactive laws did not apply. But the changes in the Adam Walsh Act made them punitive, and therefore unconstitutional.

The Ohio Supreme Court could have new rules when it comes to registering sex offenders…unless the crime was committed before 2007.
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Is Application of ‘Adam Walsh Act’ to Crime Committed Before Law Took Effect Unconstitutionally Retroactive?

July 11, 2011 Comments off

Is Application of ‘Adam Walsh Act’ to Crime Committed Before Law Took Effect Unconstitutionally Retroactive?

Under U.S., Ohio Constitutions’ Bans Against Ex Post Facto Laws

State of Ohio v. George D. Williams, Case no. 2009-0088
12th District Court of Appeals (Warren County)

ISSUE: Does retroactive imposition of sex-offender registration requirements enacted in 2007 as part of the Ohio Adam Walsh Act (AWA) on offenders whose crimes were committed before the effective date of the AWA violate the ex post facto and due process clauses of the U.S. Constitution, and/or the provision of the Ohio Constitution prohibiting retroactive laws?

BACKGROUND: In a June 2010 decision, State v. Bodyke, the Supreme Court of Ohio voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorized the state attorney general to reclassify sex offenders who had previously been classified by judges under an earlier version of the law, “Megan’s Law.” The Court held that the challenged provisions violated the separation-of-powers doctrine of the Ohio Constitution. The defendants in Bodyke also argued that application of the AWA to crimes that were committed before the July 1, 2007 effective date of that legislation violated the constitutional prohibition against “ex post facto” laws (laws that retroactively increase the punishment for a crime after the crime has been committed). However, because the Court’s ruling on the separation of powers issue voided the Bodyke defendants’ reclassifications under the AWA and reinstated their Megan’s Law registration status, the justices declined to review the appellants’ ex post facto arguments. In this case, a defendant not affected by the Bodyke decision challenges on ex post facto grounds a trial court order that applied the AWA classification scheme in sentencing him for a crime he committed before July 1, 2007.

When the General Assembly adopted the AWA, it specified that, regardless of when a defendant’s crime was committed, state courts sentencing sex offenders on or after July 1, 2007 must apply the new AWA sex offender classification scheme and include in the defendant’s sentence registration and community notification requirements set forth in the AWA that are more severe than similar provisions in the previous, Megan’s Law, version of the statute.

George Williams of Warren County was convicted in December 2007 of engaging in sexual conduct with a 14-year-old girl. The conduct on which his conviction was based took place in May 2007. Prior to his sentencing hearing, Williams entered a motion asking the trial court to sentence him under the Megan’s Law sex offender classification scheme that was in effect on the date of his offense, rather than under the AWA classification scheme. The trial court overruled Williams’ motion. He was sentenced to three years of community control and classified as a Tier II offender under the AWA, requiring him to register with the sheriff in his county of residence every 180 days for the next 25 years. If he had been sentenced under the Megan’s law version of the statute, Williams, who had no prior sex-related convictions, would have been subject to once-a-year registration for 10 years.

Williams appealed, arguing that the retroactive application of the AWA registration requirements to his May 2007 offense violated the ex post facto, due process and double jeopardy clauses of the U.S. Constitution and the retroactivity clause of the Ohio Constitution. The 12th District Court of Appeals affirmed the trial court’s classification of Williams under the AWA as constitutional. The court of appeals cited several prior Supreme Court of Ohio decisions including State v. Cook (1998), State v. Wilson (2007), and State v. Ferguson (2008), in which this Court held that the statutory registration and community notification requirements imposed by the state on sex offenders were civil and “remedial” measures designed to protect the public rather than punitive measures intended to punish or deter offenders. Applying that same analysis to Williams’ case, the 12th District held that retroactive imposition of the AWA registration requirements as part of Williams’ sentence did not retroactively “increase the punishment” for his crime, and therefore did not violate the ex post facto clause of the U.S. Constitution or the retroactivity clause of the state constitution.

Williams sought and has been granted Supreme Court review of the 12th District’s ruling.

Attorneys for Williams point out that the Cook, Wilson and Ferguson decisions cited by the 12th District all analyzed the pre-2008 sex offender classification scheme under Megan’s Law, not the more stringent requirements imposed by the AWA. They argue that these earlier decisions relied on the fact that, before a sex offender was classified under Megan’s Law, the court was required to conduct a hearing at which the judge reviewed the facts of that specific case and the defendant’s personal and social history to determine how likely that individual was to reoffend — and then impose whatever level of registration and/or community notification the court found necessary to protect the community. They note that the AWA has eliminated judicial review of an individual offender’s history or the circumstances of his crime for purposes of classification, and instead imposes identical registration and community notification requirements on offenders based exclusively on their offense. The appellants argue that the AWA classification system is no longer primarily a remedial scheme related to the actual danger posed by individual offenders.

Attorneys for the state point to specific language included in the AWA stating that the legislature’s intent was “to protect the safety and welfare of the people of this state,” and that the exchange or release of information required by the statute “is not punitive.” They argue that the registration and community notification requirements in the AWA are merely expansions of requirements that were already imposed under Megan’s Law, and assert that nothing in the 2007 changes to the law have changed the nature or intent of those requirements from remedial to punitive. Accordingly, they assert, the Court should follow its earlier holdings that requiring sex offenders to register with police and disclosing their presence to others who live, work or attend school nearby is not punishment, and applying those requirements retroactively does not offend the ex post facto provisions of the Ohio or U.S. constitutions.

NOTE: An amicus curiae (friend of the court) brief supporting the position of Williams has been submitted by the Cleveland Rape Crisis Center and Texas Association Against Sexual Assault. The American Civil Liberties Union also has submitted an amicus brief supporting Williams’ position. The Ohio attorney general’s office and Franklin County prosecutor’s office have entered amicus briefs supporting the position of the state. Copies of the amicus briefs and all other filings in the case can be accessed by going to the following hyperlink: http://www.supremecourt.ohio.gov/Clerk/ecms/searchbycasenumber.asp and entering the case number, 2009-0088, in the search box provided.

Contacts
Michael Greer, 513.695.1325, for the state and Warren County prosecutor’s office.

Katherine A. Szudy, 614.466.5394, for George Williams.

Ohio Channel Video

http://www.supremecourt.ohio.gov/PIO/oralArguments/11/0301/0301.asp

OH: House Trying to Retroactively Classify Past Offenders (Again)

February 7, 2011 Comments off

As we posted last week, The Ohio House of Representatives has proposed a new bill (HR 77)

If this bill passes, anyone who had not yet matriculated off of the sex offender registry by January 1, 2008 would be hauled back into court for a second sex offender classification hearing where a judge would instate a new sex offender classification. The result of this bill would be exactly what Senate Bill 10 did in 2008 (to reclassify those who should have graduated off of the registry and impose new registry requirements on them, often a life-long registration requirement).

HB 77 is to be debated in the House Criminal Justice Committee on Wed. Feb, 9, 2011 at 9 am. Everyone affected or concerned with this matter should attend this hearing at The Ohio Statehouse in Columbus Ohio. (update Feb 8: we are told by Rep. Slaby’s assistant that only sponsors will participate in this first hearing, and that opponents will not be permitted to participate).

The hearing is open to the public and opposing opinions are allowed. Just fill out the witness form when you enter the statehouse. If you have any written information for the record, you should submit it as well.

If we act proactively and if we have a large number of people attend this hearing, we can avoid a repeat of the 2-1/2 year debacle which we experienced with the implementation of Senate Bill 10 from Jan 2008 through June 2010 when it was finally ruled to be illegal.

We have a good chance to defeat this bill before it advances to a vote. But only if we have others willing to join in the fight, appear at the hearing and communicate your opposition to the bill.

In the meantime, readers should contact the bill’s sponsors and Committee members to clearly express their opposition to this House Bill 77, which would retroactively classify anyone with a sex offense who was not removed from the ESORN sex offender registry before January 1, 2008. This retroactive bill is a violation of the U.S. and Ohio Constitutions which expressly forbid any ex post facto law. It also violates constitutional rights of the Double Jeopardy clause of both Constitutions.

Bill Sponsors:

REPRESENTATIVES:
Hackett Garland Blessing Combs Grossman Hottinger Patmon

Bob D. Hackett, Representative
Phone: (614) 466-1470
Fax: (614) 719-6984
Email: district84@ohr.state.oh.us

Nancy J. Garland, Representative
Phone: (614) 644-6002
Fax: (614) 719-6959
Email: district20@ohr.state.oh.us

Louis W. Blessing, Jr., Speaker Pro Tempore
Phone: (614) 466-9091
Fax: (614) 719-3583
Email: district29@ohr.state.oh.us

Courtney Combs, Representative
Phone: (614) 644-6721
Fax: (614) 719-6954
Email: district54@ohr.state.oh.us

Cheryl L. Grossman, Assistant Majority Whip
Phone: (614) 466-9690
Fax: (614) 719-6962
Email: district23@ohr.state.oh.us

Jay Hottinger, Representative
Phone: (614) 466-1482
Fax: (614) 719-3971
Email: district71@ohr.state.oh.us

Bill Patmon, Representative
Phone: (614) 466-7954
Fax: (614) 719-0010
Email: district10@ohr.state.oh.us


Criminal Justice Committee:

Lynn Slaby R Chair
Phone: (614) 644-5085
Fax: (614) 719-6941
Email: district41@ohr.state.oh.us

Roland Winburn D Ranking Minority Member
Phone: (614) 466-2960
Fax: (614) 719-6940
Email: district40@ohr.state.oh.us

Bill Hayes R Vice Chair
Phone: (614) 466-2500
Fax: (614) 719-6991
Email: district91@ohr.state.oh.us

Nancy J. Garland D
Phone: (614) 644-6002
Fax: (614) 719-6959
Email: district20@ohr.state.oh.us

Louis W. Blessing, Jr. R
Phone: (614) 466-9091
Fax: (614) 719-3583
Email: district29@ohr.state.oh.us

Connie Pillich D
Phone: (614) 466-8120
Fax: (614) 719-3582
Email: district28@ohr.state.oh.us

Danny R. Bubp R
Phone: (614) 644-6034
Fax: (614) 719-6988
Email: district88@ohr.state.oh.us

W. Carlton Weddington D
Phone: (614) 466-5343
Fax: (614) 719-3581
Email: district27@ohr.state.oh.us

William P. Coley, II R
Phone: (614) 466-8550
Fax: (614) 719-6955
Email: district55@ohr.state.oh.us

Sandra Williams D
Phone: (614) 466-1414
Fax: (614) 719-0011
Email: district11@ohr.state.oh.us

Joseph W. Uecker R
Phone: (614) 466-8134
Fax: (614) 719-3966
Email: district66@ohr.state.oh.us

Ron Young R Member
Phone: (614) 644-6074
Fax: (614) 719-3963
Email: district63@ohr.state.oh.us

Call to Action : OH Legislature Going at it Again – Part 2

February 4, 2011 Comments off

It appears that a similar bill was introduced in the Ohio Senate in Nov. 2010. Senate Bill 316 was proposed by Senators: Seitz, Miller, D. Wagoner, Grendell, Turner, and Smith.

Senate Bill 316 is “to clarify for an offender or delinquent child who had SORN Law duties under the SORN Law in effect prior to January 1, 2008, the offender’s or child’s duties under the current SORN Law and the duration of those duties and to declare an emergency.”

Those who are concerned about this attempt to retroactively re-capture (onto the sex offender registries) all offenders whose crimes pre-dated the 2008 law change, should immediately contact these Senators to voice your opposition.

SB 316 Sponsors:

Bill Seitz (R)
Phone: (614) 466-8068
Email: SD08@senate.state.oh.us

Mark Wagoner (R)
Phone: (614) 466-8060
Email: SD02@senate.state.oh.us

Tim Grendell (R)
Phone: (614) 644-7718
Email: SD18@senate.state.oh.us

Nina Turner (D)
Phone: (614) 466-4583
Email: SD25@maild.sen.state.oh.us

Shirley A. Smith (D)
Phone: (614) 466-4857
Email: SD21@maild.sen.state.oh.us

The intent of SB 316 and HB 77 is to:

“Create a list of all the sex offenders who were reclassified via the 2010 Bodyke ruling, notifying them all by mail, and forcing them into court one at a time to have a judge issue a new Adam Walsh Act sentencing order. It would re-reclassify all of these individuals into the AWA tier scheme, adding thousands to the registry, many for life.”

Both of these bills will be debated within the respective House & Senate Criminal Justice Committees. Readers should contact the members of this committee in order to voice your opposition to these bills.

Senate Criminal Justice Committee (re: SB 316)

http://www.ohiosenate.gov/committees/standing/detail/judiciary-criminal-justice.html


Tim Grendell (R)
Chair

Larry Obhof (R)
Vice Chair

Nina Turner (D)
Ranking Minority Member

Eric Kearney (D)

Frank LaRose (R)

Peggy Lehner (R)

Scott Oelslager (R)

Joe Schiavoni (D)

Mark Wagoner (R)

House Criminal Justice Committee ( re: HB77)

http://www.house.state.oh.us/index.php?option=com_displaycommittees&task=2&type=Regular&committeeId=98

Criminal Justice
Name Party Position Name Party Position
Lynn Slaby R Chair Roland Winburn D Ranking Minority Member
Bill Hayes R Vice Chair Nancy J. Garland D Member
Louis W. Blessing, Jr. R Member Connie Pillich D Member
Danny R. Bubp R Member W. Carlton Weddington D Member
William P. Coley, II R Member Sandra Williams D Member
Joseph W. Uecker R Member


Ron Young R Member

Ohio AG Petition for Clarification Denied by Ohio Supreme Court

August 17, 2010 Comments off

SLIP OPINION NO. 2010-OHIO-3737
The State of Ohio, Appellee v. Bodyke et al, Appellants.

“1. On June 3, 2010, the court reversed the judgment of the court of appeals in this case. State v. Bodyke,Ohio St.3d, 2010-Ohio-2424,N.E.2d.
2. Appellee, state of Ohio, and amicus curiae Ohio Attorney General
have filed a joint motion for reconsideration and/or clarification.
3. The motion for reconsideration and/or clarification is denied.”

Therefore, there is no longer any excuse for the failure of the Ohio Attorney General’s office to re-classify all affected former offenders. They have been dragging their feet for ten weeks now, refusing to abide by the Supreme Court’s ruling.

See: UPDATES, Friday, July 23 : Failure of Ohio AG to Abide by Supreme Court Ruling

In just over 10 weeks, the Ohio AG office has removed only about 1000 registrants from their Sex Offender Registry. We are told by the Ohio Public Defender Office that approximately 2300 individuals are slated to be removed. But keep in mind that people are forced onto this corrupt registry every day, as well.

The AG office has refused to answer or return our calls. They have now blacklisted Constitutionalfights. And they have told us so, very directly and rudely. So we must rely on you, the readers, to help do the job of holding them accountable.

Keep contacting the Ohio Attorney General’s Office daily until they get these re-classifications completed and send official letters !

We are hearing from some (not many) readers who have told us of their removal from the registry. We are happy to see these people relieved of their illegal punishments but we urge all readers to remain vigilant until the Attorney General Office sends official letters to registrants informing them that they no longer have a duty to register. Having these letters in hand is very important. Law enforcement is just as corrupt and incompetent as other state authorities are. If a sheriff bangs on your door in the middle of the night because you did not register, you need to have that letter in hand !

Justin Hykes, Assistant Attorney General of Ohio
justin.hykes@ohioattorneygeneral.gov
614-387-4257
FAX 614-466-5087
E-fax 1 866 293 1021

Paula Armentrout ,AG Help Center Manager can be contacted here:
800-282-0515
Dan, Help Center Supervisor can be contacted here:
800-282-0515

Ohio Attorney General Office:
Ohio Attorney General Richard Cordray, 30 E. Broad St., 17th Floor, Columbus, OH 43215
(800) 282-0515
Monday – Friday 8 a.m. – 7 p.m.
Email Ohio ESORN at OHLEGsupport@OhioAttorneyGeneral.gov

OHLEG Support
1-866-40-OHLEG (1-866-406-4534)
OHLEGsupport@OhioAttorneyGeneral.gov

Media Contacts:

Kim Kowalski: (614) 728-9692, cell: (614) 893-6018
Ted Hart: Deputy Director of Media Relations
Office of the Ohio Attorney General
PHONE 614-728-4127, cell: (614) 743-2286
EMAIL ted.hart@ohioattorneygeneral.gov (614) 728-4127

We are also now actively seeking advice from any legal professionals who read these blogs, regarding potential legal action against the Ohio Attorney General Office for their failure to abide by this Ohio Supreme Court ruling. Please contact us at constitutionalfights@yahoo.com with any advice or willingness to help. Thank you.


UPDATES, Monday June 14 : Ohio Esorn and Ohio Public Defender

June 14, 2010 Comments off

ConstitutionalFights.org spoke to our source at the office of the Ohio Public Defender regarding ESORN and County Sheriff Departments in their refusal to comply with the Ohio Supreme Court ruling (Bodyke vs. Ohio).

Conference Call
Our contact person at the Ohio Public Defender (OPD’s) office told us that there was a conference call held on the day after the Court ruling (Friday, June 4, 2010) with the Attorney General (AG’s) Office and the Ohio Justice Policy Institute (OJPI). During that conference call, the AG office was asked when the updates would be make to come into compliance with the Court ruling. The AG office said that they were trying to create a software program to change the classification of all 26,000 invalidated registrants back to their previous classifications collectively, rather than changing each person individually. The AG suggested that this would be done within a week’s time. One week later, our OPD source called the AG office to ask if this had been completed. The AG office asked for another week. So our OPD source will contact the AG office once again on Friday, June 18. The fact remains that the Ohio AG office has had over two weeks to make some progress on updating the ESORN sex offender registry to comply with the Ohio Supreme Court decision and has failed to do so. ConstitutionalFights.org has spoken to two computer IT professionals (one of whom does contract work for the US Department of Defense). Both of these IT professionals told us the same thing; that this simple database change could be completed in one hour.

AG Ordering Sheriffs Not to Act
We also learned today that there is some suspicion that the AG office has ordered local County Sheriff Departments to NOT change any registrants classification at this time. This has not been validated but we do have some reason to believe this may be happening. We were told today that although ESORN falls under the organization of the Ohio AG Office, each County Sheriff Department is responsible for updating and correcting all sex offender registry data. We did not know that the AG has no direct responsiblitiy to update the registry data. But this fact does not dissolve them from responsibility in their failure to direct the County Sheriff Departments to make these updates.

Legal Options
The OPD has considered some options of what they might pursue if the AG Office does not properly act to comply with the Court order. One option is to bring some sort of “contempt of court” litigation unto the AG Office. We have also heard from others that some sort of “judicial order” might be sought if the AG Office refuses to comply in a timely manner. This litigation would be taken only after some time has passed, however, as a judge would likely allow the AG office at least 30-60 days to comply. Judges would not understand that this simple database update could be done in an hour’s time, unless we can bring in a computer professional to testify to this fact. Any IT professionals who might be interested in testifying in such a matter, are asked to contact us here.

FAQ and Guidelines
We are still awaiting information about when and if the “FAQ and Guidelines” have been sent from the AG Office to the County Sheriff Departments. We were told by Steve Brown’s office ( at Ohio AG ) that these “FAQ and Guidelines” were being drafted last Monday and would be sent soon. That was a week ago. To our knowledge, these documents have still not been sent to the County Sheriff Departments. We have also been told for the past two weeks that letters would be sent from the AG Office to each of the 26,000 reclassified registrants who were affected by the Supreme Court decision. Those letters have not been sent two weeks after the decision came down.

More Challenges on Senate Bill 10
Finally, we talked about the remaining cases which are still pending before the Ohio Supreme Court. Two of the three are juvenile cases and the Chojnacki case deals with reclassification hearings (whether they are criminal or civil). But since the Bodyke case invalidated reclassification, there is little likely to come out of this decision. Since the Supreme Court refused to rule on the Ex Post Facto and other challenges in the Bodyke case, these issues may be brought back up to the Court in other cases. One group of registrants who have not gotten much attention are those who were convicted and given classification hearings between the time Ohio Senate Bill 10 passed the Ohio Legislature ( June 2007) and when Senate Bill 10 was enacted (Jan 2008). Those cases will likely go to the Ohio Supreme Court, as well. So there are new challenges to Ohio Senate Bill 10 in the pipeline.

Please tell us if you see updates
We need to hear from you. If you are directly affected by this Bodyke decision, please check to see if you are still listed here on the ESORN page. We need to hear from you. Please drop us a short email telling us if you 1.) are still improperly listed 2.) have been removed properly, or 3.) have seen your classification changed back properly. Or just send your answer in the Poll at the top right sidebar of this page.

Please email us so we can know how many are seeing their status updated:
ConstitutionalFights@yahoo.com

If you have not seen your status updated, please continue to contact the Ohio AG Offices daily at:

Ohio Attorney General Richard Cordray, 30 E. Broad St., 17th Floor, Columbus, OH 43215
(800) 282-0515 ….. or….. 1-866-40-OHLEG (1-866-406-4534)
OHLEGsupport@OhioAttorneyGeneral.gov
Call Justin Hykes Assistant Attorney General directly at:
614-387-4257

Media Contacts:
Kim Kowalski: (614) 728-9692, cell: (614) 893-6018
Ted Hart: Deputy Director of Media Relations
PHONE 614-728-4127, cell: (614) 743-2286
EMAIL ted.hart@ohioattorneygeneral.gov


Help be a watchdog:



More on Bodyke vs Ohio

June 10, 2010 Comments off

daytondailynews.com: Ohio court: Give sex offenders old classifications.
The Briefcase: What Bodyke means.

In State v. Bodyke, by a 5-1 vote, the Ohio Supreme Court yesterday struck down the portion of the Adam Walsh Act allowing the attorney general to change the registrations of offenders convicted before the Act’s passage in 2007. The way that it arrived at that decision, and some parts of the opinion, proves most interesting.

Bodyke demonstrated the salient unfairness of the new law. Back in 1999, Bodyke had entered a no contest plea to a count of sexual battery. The judge gave him two years in prison and classified him as sexually oriented offender. That was the lowest classification of sex offenders under the current law, and required him to register with the county sheriff every year for ten years. After the AWA was passed in 2007, Bodyke got a letter from the Ohio Attorney General telling him that under the new act he’d been reclassified as a Tier III offender — the highest classification — and would now be required to register every 90 days for life, and was subject to the notification provisions as well: everyone who resided within 1,000 feet of his residence would be told that a sex offender was living in their midst.

In my post about the oral argument in the case, I’d mentioned that the separation of powers issue was the one most troubling for some of the justices: you have the legislative branch giving the executive branch the power to modify orders made by the judicial branch. You needn’t have aced 12th grade civics to see the problems with that, and and after a dutiful exposition on the history and development of that Madisonian concept, the court strikes down the provisions of AWA allowing for reclassification of offenders. That’s reclassification: if a person wasn’t classified before, but is now subject to classification by the AWA, Bodyke doesn’t prevent that.

But this is where it gets interesting. The opinion devotes two pages to a discussion of stare decisis. That’s understandable in the context of the arguments raised in Bodyke: in addition to the separation of powers issue, Bodyke contended that the AWA violated ex post facto and retroactivity principles, and violated double jeopardy as well. Those arguments had been raised in challenges to previous changes in sex offender registration laws, and in each case the court had rejected them. But the discussion of stare decisis is less understandable in the context of the result here. Although one of the previous cases had raised a separation of powers argument, without going into detail, the argument in that case was not remotely close to the one Bodyke was making, and the court wouldn’t have had to overrule the earlier case in order to come up with the result it did in Bodyke.

Justice O’Donnell concurs in the separation of powers holding, but dissents from the majority’s discussion of stare decisis, finding it wholly unnecessay, and using a cute quote from then-judge, now US Supreme Court Justice John Roberts, that “the cardinal principle of judicial restraint [is that] if it is not necessary to decide more, it is necessary not to decide more.” (One could make a fair showing that in Roberts’ career on the High Court, he has observed this principle mainly in the breach, but that’s another story.) But what’s more disturbing to O’Donnell than that the majority discusses stare decisis at all is what it says about it.

I’ve discussed before the problems with the Ohio Supreme Court’s decision in Westfield v. Galatis, where the court laid down a three-part test for determining whether it should overrule a prior case. As I’ve pointed out, the test is so restrictive that since Galatis was handed down in 2003, the court hasn’t overruled a single case, going through all kinds of gyrations to avoid doing so. In Bodyke, the majority goes completely off the reservation, deciding that stare decisis is “inapplicable” to constitutional claims, and “is not controlling in cases presenting a constitutional question.” That’s too much for O’Donnell, who rightly notes that Galatis’ tri-partite test was derived in part from US Supreme Court decisions concerning the value of precedent in cases involving — you guessed it — constitutional questions.

And what’s involved here is more than just an abstract debate. The heart of the argument over sex offender laws is whether they’re “punitive” or “remedial.” When the court first confronted the issue in 1998 in State v. Cook, the court unanimously held that the provisions of Megan’s Law fell into the latter category. The court reached the same result ten years later in State v. Ferguson, but in that case, three members of the court concluded that the amendments to Megan’s Law had made the registration and notification requirements sufficiently onerous that they tipped over into “punitive” territory. And those provisions were much less Draconian than those contained in the AWA, discomfiting the justices even more, as was evident two weeks ago in the oral argument on another case involving that statute (discussed here).

So what’s all this mean? Let’s say the court is unshackled from the stare decisis effects of Cook and Ferguson, and thus is free to conclude that the AWA is indeed punitive. If sex offender registration and notification requirements are deemed punitive, you get into some due process issues. Remember, AWA classification is offense-base, as opposed to offender-based: you commit a certain crime, you get a certain classification. Couldn’t you argue that you’re entitled to a hearing, as you were under the old law, to determine whether your actual characteristics — your history, the facts of the offense, and so forth — showed you were really a threat to society? And doesn’t the separation of powers issue appear in this context? After all, punishment is the sole prerogative of the judicial branch.

So the immediate effect of Bodyke is that the 26,000 offenders who were reclassified under the AWA now have their previous classifications restored. But the language of the opinion portends the possibility that it may be raised to attack any future classifications as well.


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