State Ex Rel. O'Brien v. Heimlich, 08ap-521 (3-31-2009)State Ex Rel. O'Brien v. Heimlich, 08ap-521 (3-31-2009)
{¶ 1} Defendant-appellant, Michael A. Heimlich, appeals from a judgment of the Franklin County Court of Common Pleas granting plaintiff-appellee, Franklin County Prosecuting Attorney, summary judgment on appellee‘s complaint seeking to enjoin appellant from residing within 1,000 feet of a school premises pursuant to R.C.
{¶ 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,
{¶ 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), 123 Ohio App.3d 158, 162. “When reviewing a trial court‘s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.” Mergenthal v. Star Bank Corp. (1997), 122 Ohio App.3d 100, 103. Summary judgment is proper only when the party moving for summary judgment demonstrates that (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in that party‘s favor. Civ. R. 56(C); State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183.
{¶ 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
{¶ 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
{¶ 16} In State v. Franklin, 164 Ohio App.3d 758, 2005-Ohio-6854, the defendant was convicted of two counts of trafficking in cocaine. Both counts were enhanced because the transactions occurred within 1,000 feet of a school premises. At trial, the state presented the testimony of a police officer who stated that he utilized a GIS program to measure the distance between the school premises and the location where the drug transactions occurred. According to the officer, the GIS program calculated the distance between the two points at 762 feet.
{¶ 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.
{¶ 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 the Franklin 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 under Dresher. 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
{¶ 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), 164 Ohio St. 142, paragraph one of the syllabus. “A regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality.” Id. at 147. “That presumption of validity of such legislative enactment cannot be overcome unless it appear[s] that there is a clear conflict between the legislation in question and some particular provision or provisions of the Constitution.” City of Xenia v. Schmidt (1920), 101 Ohio St. 437, paragraph two of the syllabus. Accordingly, we commence our analysis with the strong presumption that former R.C.
{¶ 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), 507 U.S. 292, 302, 113 S.Ct. 1439. Where there is no fundamental right at issue, courts employ rational-basis review. Washington v. Glucksberg (1997), 521 U.S. 702, 720, 117 S.Ct. 2258. Under rational-basis review, a statute survives if it is reasonably related to a legitimate governmental interest. Am. Assoc. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ. (1999), 87 Ohio St.3d 55, 58.
{¶ 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), 497 U.S. 261, 278-79, 110 S.Ct. 2841. The Court, however, has been “`reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.‘” Id., quoting Collins v. Harker Heights (1992), 503 U.S. 115, 125, 112 S.Ct. 1061. The Court
{¶ 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, 152 Ohio App.3d 311, 2003-Ohio-1639, ¶ 115. Failure to assert such an argument at the trial court level constitutes a waiver, and an appellate court is not required to consider it. State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, ¶ 101, citing State v. Awan (1986), 22 Ohio St.3d 120, syllabus. Also, as discussed below, this challenge lacks merit.
{¶ 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), 405 F.3d 700, the Eighth Circuit Court of Appeals addressed a sex offender residency restriction similar to former R.C.
{¶ 33} Other courts considering residency restrictions similar to former R.C.
{¶ 34} In State v. Seering (Iowa 2005), 701 N.W.2d 655, the Supreme Court of Iowa considered the constitutionality of a statutory prohibition against convicted sex offenders living within 2,000 feet of an elementary or secondary school or child care
{¶ 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), 88 Ohio St.3d 513, 531, citing Turner Broadcasting Sys. v. Fed. Communications Comm. (1997), 520 U.S. 180, 195, 117 S.Ct. 1174, 1189. “The state does not bear the burden of proving that some rational basis justifies the challenged legislation; rather, the challenger must negative every conceivable basis before a [substantive due process] challenge will be upheld.” Id., citing Heller v. Doe (1993), 509 U.S. 312, 320, 113 S.Ct. 2637, 2642.
{¶ 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.Chapter 2950 does not violate the Equal Protection and Due Process Clauses.
{¶ 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
{¶ 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, quoting Fed. Communications Comm. v. Beach Communications, Inc. (1993), 508 U.S. 307, 315, 113 S.Ct. 2096, at 2102. The residency restriction in former R.C.
{¶ 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.