*1
Bodyke
Appellants.
al.,
Ohio, Appellee,
et
State
Bodyke,
[Cite as 266,
1. Christian N. is an in one of three consolidated the Sixth District. others, Bodyke battery Phillips, was convicted of sexual 1999. The David Schwab and Gerald whose were AWA”), to sex offenders cases provisions apply “the as those Act” or to its enactment. adjudicated prior *2 of the for role duty great respect our discharge we Although 144, (1963), 159, S.Ct. v. Mendoza-Martinez Kennedy
legislature, that R.C. 644, compelled we are find 554, reasons follow 9 L.Ed.2d AWA, are 2950.032,the unconstitu- and reclassification 2950.031 remedy, doctrine. As separation-of-powers violate the they tional because sex 2950.032, reclassifications of offenders and hold that the strike R.C. 2950.031 invalid, prior judicial classifications and reinstate attorney general are of sex offenders. Background
I. Relevant A. Chapter 2950, law and classifica- governing registration R.C. Chapter Ohio’s has ensuing community-notification requirements, sex and the tion of offenders 2950, since in 1963. See former R.C. substantially inception Chapter evolved its used, v. the statute seldom Sears original 130 Ohio Laws 669. The version of was 2140032, State, CA2008-07-068, 2009-0hio-3541, 2009 WL No. App. Clermont ¶ 23, for three and existed without amendment decades. abducted, 1994, however, Jersey In a convicted sex offender New child, neighbor’s young Megan and Kanka. See State v. Williams
raped, killed 513, 342; 516, St.3d 88 Ohio State Cook Ohio crime, 404, 405, Jersey 570. the wake of notorious New registration a law of sex recognition by enacting requiring national gained law The community presence. and notification to the offender’s offenders (Ind.2009), Law.” Wallace v. State N.E.2d “Megan’s became known as constitutionality upheld by New was the New Jersey legislation 374. The (1995), 142 367. Supreme in Doe v. Poritz N.J. A.2d Jersey Court year Congress followed later that when enacted legislation Federal Sexually Regis- Crimes Children and Violent Offender Wetterling Against Jacob (“the Act”). Act, Wetterling tration Title U.S.Code Jacob Section imposition battery guilty attempted rape gross found in 1999 and sexual and sexual were respectively. appellants initially Megan’s All Law and reclassified were classified Schwab, according Bodyke, Phillips propositions and Those to the AWA. assert six of law. application propositions were committed before aver that the of the AWA to offenders whose crimes (2) (1) constitution, the Ex Facto Clause of the federal the AWA’s effective dates violates Post (3) Constitution, Retroactivity in the of the Ohio doctrine embodied Clause (4) They constitution, Jeopardy state constitutions. the Double Clause of the and federal AWA, adjudicated applied under the also assert to sex offenders whose cases were Law, against process protections provisions Megan’s constitutional cruel violates due punishment against impairment of contracts. unusual Wetterling Jacob Act focused on requiring implement registry states to of sex offenders and those who commit crimes children. against People Cintron 13 Misc.3d fn. years N.Y.S.2d 6. Two after its enactment, the Act require was amended to that states add community-notifica- provisions. Wetterling tion Id. The Jacob Act then became better known as the “Megan’s federal Law.” Id. The federal Law Megan’s adopt mandates the states
community-notification provisions sex offenders or governing face the loss of federal crime-control funds. Section Title U.S.Code. The General Assembly enacted version Megan’s Ohio’s Law 1996. Am.Sub.H.B. No. Laws, II, 2560, Part 2601.2 Ohio’s Law *3 Megan’s repealed Law prior Chapter versions of R.C. 2950 and created
{¶ 7}
Ohio’s first comprehensive registration and
system
classification
for sex offend-
Laws,
II,
ers. 146 Ohio
Part
In
2560.
order to accomplish
goals,
its
Ohio’s
Law
Megan’s
provided
classification,
for offender registration,
and community
Cook,
notification.
at
{¶ 8} retroactivity Cook, and ex facto post claims.3 State v. 83 Ohio St.3d N.E.2d 570. Cook, After we addressed constitutional challenges Megan’s to Law based
on theories other than post ex facto and retroactivity. rejected, We unanimously, the suggestions Megan’s that Law impermissibly intruded on the individual’s rights to maintain privacy, to acquire property, pursue to an occupation, and to Williams, maintain a favorable reputation. 524-527, at 728 N.E.2d 342. rejected We also arguments attainder, based on jeopardy, double bill of equal protection, and vagueness. Id. at 528-534. Although
2. all of the legislation comply states enacted some form of sex-offender in order to Law, Megan’s the federal the breadth of the and notification varied from state to state. Sex Offender Treatment in the United States: The Current Climate and an Unexpected Opportunity Change 84 Tulane L.Rev. 731. Supreme 3. statutory the United very States Court confronted an Alaskan scheme similar to Megan’s high Law. The that concluded the Alaskan law did not violate the Ex Post Facto 84, 123 1140, 155 Clause. Smith Doe 538 U.S. holding, S.Ct. L.Ed.2d 164. In so the court applied Kennedy Mendoza-Martinez, the factors from at 83 S.Ct. 9 L.Ed.2d Cook, as we did and drew the same conclusion —that the Ex Post Facto Clause does not prohibit retroactively requiring register states from periodically sex offenders to with local law name, disseminating community address, enforcement or photograph, to the the offender’s personal other information. a separation-of-powers confronted with following year, we were 276. We 92 Ohio St.3d Thompson State v. argument rejected unanimously. 2950.09(B)(2) violated “the former R.C. addressed whether Thompson fact- judiciary’s upon it encroache[d] doctrine because
separation-of-powers language we addressed the specifically, Id. at 585. More finding authority.” 2950.09(B)(2) before to consider certain factors required judge that former R.C. predator. an was a sexual determining whether offender not violated doctrine was conclusion that the Our fact-finding the court of its on our view that the statute did not divest turned Id., 587-588, 276. observed at We powers. judges framework assisted statutory provided important factors factors, guidelines, that the determination and making sexual-predator But more important- in the Id. “provide consistency reasoning process.” discretion or judge’s that the did not control the ly, recognized guidelines we Thus, factors. we found particular weight to certain require judge assign judge’s fact-finding powers. no interference with the improper nonexhaustive, were We further held the factors themselves factors, including, all relevant judge because the statute directed the “consider deleted.) to,” Id. at 588. statutory (Emphasis but not limited factors. doctrine, concluded, not violate the separation-of-powers we the statute did any relevant evidence and to judge because the retained discretion consider if weight, any, assign determine what evidence. Id. Cook, addressed Law years again Ten after our decision
{¶ 14}
“R.C.
process
procedures
and notification
are now different from those considered
[Williams,
513,
however, Assembly reviewing the General was the law and enacting new scheme, Act, act, the Adam Walsh 2950. That Chapter Megan’s Law amendments, and its forms the basis of appeal.
2. Ohio’s Adam Act Walsh Congress passed the Adam Safety Walsh Child Protection and (“Adam Act”), 109-248, Act P.L. Walsh No. Stat. codified Section 16901 et Title seq., U.S.Code. The Act created national standards for sex- notification, offender registration, community It classification. divides sex I, II, offenders into three categories or “tiers”-—Tier Tier and Tier III—based solely on the crime committed. Section 16911. The duration of the offender’s obligation update his personal registry information on his depends tier classification. Section 16915. 16912(a) every jurisdiction Section directs maintain a sex-offender
registry conforming requirements to the of the Act. compliance, And to ensure Congress directed that states that did not adopt the Adam Walsh Act risked ten losing percent of certain federal crime-control funds would otherwise be 16925(a). allocated to them. Section The following year, Assembly the General enacted 2007 Am.Sub.S.B. repealed new,
No. 10.4 S.B. 10 Law replaced it with a retroactive *5 system scheme that includes the tier required by Congress. Chapter R.C. 2950. (December only mandate, complied 4. Greg Ohio is the state to have with the however. Bluestein 2009), rules,” adopt Rep.com, http://www. lone state “Ohio to sex-offender in Canton at available (last cantonrep.com/ohio/x2072228737/Ohio-lone-state-to-adopt-sex-offender-rules visited Mar. offender, sex habitual sexually of oriented categories The former to exist, the hold required nor is offender, predator longer no sexual I, Tier Tier Instead, are classified as as before. offenders hearings classification offenders) (or solely on the based II, child-victim or Tier III sex offenders required notify to officials are Specified 2950.01. offender’s offense. R.C. 2950.03, R.C. and new tier classification. of their duties existing offenders 2950.081,and 2950.032. here, no longer judges our AWA Significantly purposes Id. fits the offender. classification best
have to determine which discretion date, Assembly the General Instead, the AWA’s effective a few months before 2950.031(A) attorney reclassify existing to offenders. general directed 1, 2007, 2950.032(A)(1). before December registered Offenders who had the new I, II, according or sex to as Tier III offenders were to be reclassified solely to the offense. See R.C. assigned by Id. reference statutes. Tiers are (G). 2950.01(E), (F), is administered process The entire reclassification is any no court. There no individual attorney general, involvement given employed is to of the other factors any ized assessment. No consideration Id. As a to Law. previously hearings pursuant classification held fact- any engage to result, stripped power independent the trial court is of testimony of Expert to an offender’s likelihood recidivism. finding determine history longer criminal are no presented; no the offender’s and social longer .5 relevant to required register After the offender is completed, tier classification is 2950.04(A)(1). according require- the classification. R.C. 2010). July July appears it compliance 2009 to but The deadline for has been extended unable, states, many many unwilling, comply. still or Id. For costs states "will example, funding. has compliance outweigh percent Act far the ten For with the will reduction year comply with Act in the would be been estimated that the cost for Illinois to first Winiarski, $21,000,000 $1,000,000 Facing if it Liz but that it will lose less than does not. See Act, Safety Weighing all Compliance States are Deadline for the Adam Walsh Child Protection and 192,193. L.Rep. Costs Pub. Interest emphasized we Eppinger N.E.2d 5. In State v. {1Ía} basis, importance assessing hearing each offender on individualized the classification conviction, only labeling predators on avoiding as sexual based wholesale offenders legislation, protect public: advancing purpose was adjudicate ‘being predators, run “If we all as sexual we the risk were sexual offenders {¶ b} high-risk persons may may with a not deserve to be classified flooded number of who individuals, credibility diluting consequence purpose and the with the both the behind ” Thompson App.3d 1144. quoting at law.’ Id. sexually predictor opined not clear of whether “[o]ne oriented offense is We further {¶ c} offenses, sexually particularly if person likely engage in the more future one or oriented conviction, sexually recognize pedophile. oriented without is not a one offender more, may predict future behavior.” Id. *6 ments AWA on vary depending under the the tier in which the offender is 2950.06(B) (frequency duty verify classified. R.C. information personal (duration tier); depending duty differs on R.C. 2950.07 to comply with tier). registration/verification on requirements depends Law, Under if an was Megan’s offender classified the lowest risk level, i.e., sexually offender, register as a oriented he was required annually for 2950.07(B)(3) period 2950.06(B)(2), years. ten Former R.C. and 146 Ohio Laws, II, Part community 2613. No notification followed. Under the AWA, although community there is still no for the notification lowest-risk offenders, i.e., I, classified Tier verify offenders into those offenders must their personal annually information for 15 rather than ten years years required 2950.07(B)(3). Megan’s under R.C. Law. Law, i.e., an posed risk, Under offender who an intermediate than a than predator sexually offender,
less sexual but more oriented was 2950.01(B), Laws, labeled a habitual sexual offender. See former R.C. 146 Ohio II, Part 2601. required Habitual sexual were verify personal offenders their 2950.07(B)(2) 2950.06(B)(2), information for 20 annually years, former R.C. and Laws, II, 2617, 2613, 146 Ohio Part community and was required only notification 2950.11(A) the judge (F), if it appropriate. deemed Former R.C. and 146 Ohio Laws, II, 2627, scheme, Part 2630. In the AWA the intermediate-risk offender is in placed Tier II. II verify every days Tier offenders must years, R.C. 2950.07(B)(2) 2950.06(B)(2), but community required. notification is not R.C. 2950.11(F) offenders). (community notification limited Tier III sexual-predator classification was the offender highest-risk Megan’s Law. predators required Sexual to register every days were for life. 2950.06(B)(1) 2950.07(B)(1), Laws, II, Former R.C. 146 Ohio Part 2613 and 2616. Community 2950.11(A), notification was required. Former R.C. 146 Ohio Laws, II, AWA, Part 2627. Under III Tier have offenders the same obligation to their verify personal information predators, as sexual R.C. 2950.06(B)(3) 2950.07(B)(1)(for (every days) life), community notifica- 2950.11(A). However, tion is required. R.C. scope registration is expand- greatly. ed Megan’s Law required offender to register with sheriff in the
county 2950.04(A), which resided. Laws, II, he Former R.C. Part AWA, Pursuant to the register offender must with the sheriff in the county lives, school, which county he he county attends employed, any which he is county which he is temporarily domiciled for more than three days, county and even in another if state he works or attends school 2950.04(A)(2)(a) (e). there. through When he he registers, provide must full birth, number, his name and any aliases as well as his date of security social school, plate the license address, employer of his name and address his driver’s employment, his operates part owns or motor vehicle he any license, any e- or number, occupational or any professional license him. registered numbers address, telephone mail and all Internet identifiers *7 2950.04(C). R.C. In requirements. community-notification expands the AWA Similarly,
{¶ 28} name, address, III offender’s scheme, notice of a Tier gives the sheriff the new 1,000 residence. R.C. feet of the offender’s all residents within and conviction to 2950.11(A)(1)(a). all residents multiple-unit building, in a If offender lives notified. R.C. must be with the offender hallway share a common who offenders, those who 2950.11(A)(1)(b). including forbids all sex The AWA also school, 1,000 children, feet of living from within against offended have not 2950.034(A).6 day-care facility. or child preschool, the Court Appeal B. The Before of no 18, 1999, agreed plea entered an Bodyke appellant On October 2911.13(A)and in violation of R.C. entering breaking contest to one count 2907.03(A)(3). later, Two months in violation of R.C. battery one count of sexual imprison- of six months’ him to concurrent sentences judge the trial sentenced battery. for sexual years’ imprisonment and two breaking entering ment for time, that was in effect at that addition, 2950.01 relying on the version R.C. offender, lowest level of offender oriented sexually he was classified as offender, to Bodyke required was sexually Law. As a oriented subject was not every year years. for ten He register county with the sheriff however. community-notification provisions, Bodyke’s plea after no-contest eight years In November acting attorney general, years being prison, almost five after released AWA, notified that he Bodyke pursuant to the reclassification offender, III automatically labeled a Tier Bodyke would be reclassified. was days for every him with the local sheriff requires personally register Further, subject community-notifica- Bodyke is now the duration of his life. provisions. tion which affirmed Appeals, District Court of He to the Sixth appealed 2009- discretionary Ohio St.3d
unanimously. accepted appeal, We his Ohio-1638, and now reverse. bought constitutionally applied to an offender who prohibition court held that this cannot
6. This
Porter,
Hyle
the statute.
the effective date of
his home and committed his offense before
165,
II. Analysis A. Stare Decisis and amici curiae parties repeatedly urge Ferguson Cook and here, compel particular suggest result and some that the doctrine of stare here, decisis controls the outcome. As we have described this court has re- peatedly Law as upheld Megan’s array constitutional over an But challenges. those compel particular decisions no result in the cases before us. Initially, we reiterate an important aspect but often overlooked of our
law on stare decisis. We have held that “stare applies rulings decisis rendered statutes, in regard specific it is limited to circumstances ‘where the [but] facts ” of a subsequent case are substantially the same as a former case.’ Arbino v. ¶ Johnson, Johnson & 420, 23, quoting Rocky Emp. River v. State Relations Bd.
N.E.2d 103.
as a threshold question, we must determine whether the
statute
presented today
and facts
are
presented
the same as those
in precedent.
*8
We are
persuaded
the AWA is substantially different from Megan’s Law.
Cook and Ferguson, the cases cited as dispositive
appeal,
of this
did not present a
did,
challenge.
Thompson',
And
involved a statutory
provision
implicated
not
in this appeal because Thompson was concerned only
2950.09(B)(2),
with former R.C.
the provision listing factors a judge
required
was
to consider in determining whether an offender is a sexual
predator.
(“The
at
{¶ 34} decisions to this But importantly here, case. more purposes for our we believe that there is a more vital and compelling limitation on the doctrine as it has in developed Ohio: its inapplicability to constitutional claims. Galatis, Our decision in
{¶ 35}
1256, established the test for
departing
precedent. But
in
Galatis arose
context of
law,
insurance and contract
not constitutional law. That difference is
significant,
River,
in
we made clear
our
in Rocky
decision
tions on appeals, in the instant stare decisis presenting question. constitutional decisions, result we reached compel past us to reach the same does not Ferguson and including Cook. constitutional analysis important our of the proceed now We us.
questions before
B. Separation-of-Powers Doctrine first, and of a free defining, principle government constitutional (Del.2005), A.2d powers. Evans v. State separation 168, 190-191, L.Ed. the United Thompson Kilbourn Supreme States Court stated: system “It chief merits of the American to be one of the believed law, all whether powers government, constitutional intrusted
written executive, national, grand departments, are divided into the three State or of these judicial. appropriate That the functions each legislative, servants, in a body public shall be government separate branches of vested separate that the lines which system requires perfection *9 It also broadly clearly and defined. is essential departments divide these shall in power with working system persons to of this the intrusted the successful powers to encroach the any permitted upon of branches shall not be one these others, law of by to the but that each shall the its creation be limited confided no own and other.” powers appropriate department the exercise of the its system of As our own state regard has observed government: Ohio, jurisdictions, other does not have a constitutional “While unlike implicitly powers, the of of this doctrine
provision specifying
concept
separation
of
Ohio Constitution that
framework of those sections
the
embedded
the entire
of
granted
and
of
to the three branches
state
scope
the substance
powers
define
(1986),
157, 158-159, 28 Ohio St.3d
OBR
government.”
Euclid v. Jemison
S.
250,
within
power
It
the constitutional diffusion of
“represents
of the other and further that none of ought possess them directly indirectly overruling influence over the rel. Bryant others.” ex 473, Akron Park Metro. Dist. Summit Ohio Cty. St. 166 N.E. 407. people specified in our general Constitution that assembly “[t]he ** * any judicial shall power, [not] exercise expressly herein conferred.” II, Section Article Ohio Constitution. Our reflect principles. decisions these haveWe held that administration justice by judicial “[t]he branch of the government impeded cannot be other branches of the government of them respective powers.” exercise State ex rel. Johnston v. Taulbee St.2d O.O.3d paragraph syllabus. one of the both judiciary power has duty the solemn to determine
{¶ 46} constitutionality and validity acts other of the government branches and to ensure that the boundaries between branches remain intact. State ex rel. Ohio Academy Trial Lawyers Sheward long have that they wary any “[J]urists understood must be usurpation powers the judiciary by conferred on constitutional mandate and any * * Norwood, upon
intrusion
the courts’ inherent powers
¶
borders the three branches order to ensure security *10 harmony government, Lapsley (1869), 224, 503, Weaver v. 43 Ala. 1869 WL *5, and to the avoid evils that would flow from legislative encroachment on our (1873), 686, independence. 4108, Lawson v. 47 1873 Miss. WL *8. As Jeffries
277 “ united are warned, legislative powers and executive the Montesquieu ‘[w]hen liberty can be then no body of there magistracy, in the same person, the same ** separated not power judging if the of liberty, *. is no there [And] ” State, 544, at quoting A.2d v. 872 powers.’ executive Evans legislative the (Thomas 1949), trans., fn. Nugent of the Laws Spirit The Montesquieu, Baron de 2091, 450, 141 (1998), 417, 118 U.S. S.Ct. also v. New York 524 39. See Clinton (the threat guards against the 393 doctrine L.Ed.2d of single government). of in a branch power the concentration liberty posed by of composed recognizes government But that our the doctrine also inAnd toward a common cause. collectively that must work equal branches the so, influence over the each to have some doing permits Constitution branch example, legislative of law. For the development branches in the the other defining law by role in criminal important meaningful plays branch judicial equally has its punishment, while the branch assigning offenses those laws. interpreting role in important vision of As has Madisonian Supreme explained, Court isolation, contemplate operating did three branches
separation powers Rather, was designed over the others. doctrine each without influence “ exercised against department [being] ‘the whole of one protect power ” in which power department,’ hands the ivhole of another possess same ” “ (Em- constitution, of a are subverted.’ principles case ‘the fundamental free sic.) 361, 380-382, 109 S.Ct. States 488 U.S. phases Mistretta United (J. Ed.1961) 47 The Federalist No. Cooke 325-326. quoting L.Ed.2d system imposes court us of belief that “our constitutional The reminds Madison’s duty interdepen- degree overlapping responsibility, the Branches a upon * * Mistretta, independence as well id. dence as interdependence independence the boundaries between Navigating always But to aid us. easy. guideposts of the branches is not we have design in the Founders’ analysis, recognize Foremost “ safeguard ‘a tripartite self-executing against model was intended serve ” at of the other.’ aggrandizement expense encroachment or one branch Mistretta, Buckley at quoting U.S. S.Ct. L.Ed.2d 612, L.Ed.2d Court Supreme Valeo 424 U.S. 96 S.Ct. animates aggrandizement” counsels that “this concern of encroachment powers vigilance against decisions on the and arouses separation “ separate within each of the Branches to exceed ‘hydraulic pressure inherent ” Mistretta, & limits power.’ quoting Immigration outer of its 488 U.S. v. Chadha S.Ct. Naturalization Serv. “not to strike of law L.Ed.2d 317. The has hesitated down among diffused single powers appropriately to a Branch more either accrete *11 278
separate authority independence Branches that undermine the of one or Mistretta, another coordinate Branch.” id. respect authority legislate while we must the fact that the is for alone, Assembly
the General
must also
that its legislative prerogative
ensure
Assembly
require
unbridled. The General
cannot
the courts “to treat as
which
valid laws those
are unconstitutional.
If this could
the
permitted,
whole
by
of the
at once
power
government would
become absorbed and taken into itself
(1905),
54,
Legislature.”
58,
the
Bartlett v.
St.
N.E.
75
939. We
duties,
must be
wary
legislature,
that the
its own
does not
discharging
accrete
judiciary.
and encroach on the
of the
power
province
branch,
specifically involving
judicial
cases
Supreme
Court
advises vigilance against
dangers:
two
“that the Judicial Branch neither be
assigned
allowed
nor
‘tasks that are more properly accomplished by [other]
branches,’
Morrison Olson
v.
[1988],
487 U.S.
[654]
680-681
[108
S.Ct.
2597,
101
and,
569],
second,
L.Ed.2d
no provision
‘impermissibly
of law
threatens the
institutional
integrity of the
Branch.’ Commodity
Trading
Judicial
Futures
[1986],
[833],
3245,
Comm’n. v. Schor
478
at
U.S.
851
S.Ct.
92 L.Ed.2d
[106
675].”
Mistretta,
at
488 U.S.
109
reclassification scheme. That requires attorney scheme general reclassify offenders who previously by judges were classified according provi- sions Law and Megan’s precursor. its
1. The reclassification provisions violate
separation-of-powers
doctrine
AWA’s
governing the reclassification
sex
offenders
already
by
classified
judges
Law violate
doctrine for
related
two
reasons:
the reclassification scheme vests the executive
decisions,
authority
judicial
branch with
to review
and it interferes with the
judicial power by requiring
reopening
of final judgments.
It is well settled
cannot
legislature
enact laws that
final judgment.
revisit a
We have held
century
over a
Legislature
annul, reverse,
“the
cannot
or modify a
State,
judgment
already
of a court
rendered.” Bartlett
73
at
Ohio St.
(22 Wall.)
N.E. 939. See also United
v. O’Grady
States
89 U.S.
647-
(“Judicial
648, jurisdiction
L.Ed. 772
implies
power
hear
determine
*
* *
cause,
Congress
subject
judgments
cannot
Supreme
of the
Court
any
re-examination and revision of
any
other tribunal or
other department
the government”).
Supreme
As the
Court
recently explained,
of California
conditions not
deprived
‘finality’through statutory
cannot be
of their
“judgments
case,”
particular
in effect
branch
its ‘last word’
gave
when
legislation. People King
behind the
Cal.4th
regardless
policy
Plaut,
227, 230,
37 P.3d
Cal.Rptr.2d
citing
U.S.
“A
final
the laws
judgment
existing
S.Ct.
the settled and
the
branch of
Russell,
2008-T-0074,
courts in officials of judiciary by the Executive Branch” or interfere with the Plaut, the federal “commanding reopen judgments,” courts to final U.S. 115 S.Ct. 131 L.Ed.2d Assembly General cannot vest authority attorney general final reopen and revise the decision of a judge classifying sex offender. undeniably judicial Our Constitution and case law make clear that the judicial resides
power exclusively parte Logan branch. Ex Branch Bank, judicial of the power 48. The 1853 WL 1 Ohio St. Ohio TV, 1, Article Constitution. courts. exclusively Section is vested state affirm, judgments reverse other courts’ modify, or to review and power IV, 3(B)(2), Article Ohio Constitution. limited to courts. Section strictly appellate separation-of- thus violates the that exclusive role and The AWA intrudes on doctrine. powers Moreover, requires judgment opened, final has been the AWA once the 59}
{¶ of offenders the new classifications attorney “shall determine” general that the former statutes. judges who were classified delinquent children (b). 2950.032(A)(1)(a) so, 2950.031(A)(1) it violates doing to revisit authority to the branch by assigning executive prohibition second judicial determination. 2950.032, require that R.C. 2950.031 conclude classified reclassify already sex offenders who have been
attorney general to law, instruct executive branch impermissibly order under former thereby separation-of- violate the branch past review decisions *13 doctrine. powers 2950.032, require and which the conclude that R.C. 2950.031 We further
{¶ 61}
already
reclassify sex offenders whose classifications have
attorney general to
order,
the
subject
made
of a final
violate
adjudicated
a court and
the
by
been
of final
by
opening
judgments.
doctrine
the
requiring
unconstitu-
provision
is
light
In
of our conclusion
the reclassification
time.
tional,
the
constitutional claims at this
remaining
we decline to address
is,
remedy to
See State
question
apply?
The sole
salient
Which
remaining
¶
N.E. State v. quoting paragraph 28 N.D. N.W. Bickford syllabus. standards, these Applying we conclude that R.C. severance of 2950.031 2950.032, AWA, the reclassification proper is the remedy. By excising component, the unconstitutional do not we “detract the over- objectives of riding i.e., Assembly,” General to better protect public from offenders, the recidivism of sex AWA, and the “which remainder is capable ¶ alone, being read and standing place.” is left Foster We and, therefore hold that R.C. 2950.031 and 2950.032 are severed that after severance, may not they be enforced. may R.C. 2950.031 and 2950.032 not be applied previously adjudicated Law, offenders by judges community-notification classifications and orders imposed previously by are judges reinstated.
III. Conclusion reasons, For foregoing 2950.032, hold 2950.031 require attorney general to reclassify sex already offenders who have law, been classified order under former impermissibly instruct executive branch to review past decisions of the branch and thereby violate the addition, separation-of-powers doctrine. R.C. 2950.031 and *14 2950.032 separation-of-powers violate the by doctrine requiring opening judgments. final
Judgments reversed. Lundberg JJ., Lanzinger, Stratton and concur. J., concurs in
Pfeifer, syllabus and judgment. J., concurs in part and dissents in part. O’Donnell, Cupp, J., dissents.
Brown, C.J., not participating.
O’Donnell, J., concurring part dissenting part. and No. 10 violates the lead that 2007 Am.Sub.S.B. I with the agree opinion 68}
{¶ the attor- require statutes applicable doctrine because reclassify to government, branch of a of the executive member ney general, sexually either oriented classified as previously who have been sexual offenders offenders, with a offenders, or sexual accordance predators habitual sexual However, I government. branch of a member determination decisis, the doctrine of stare opinion discussing of the lead part dissent from opinion and to the decision the lead wholly superfluous it is dicta because 10 are unconstitutional. S.B. the reclassification
Separation of Powers no-contest to Bodyke pleas breaking In Christian entered October aggregate trial him to an entering battery. and court sentenced and sexual sexually and declared him a oriented offender two-year imprisonment term of offender, sexually time. a to in effect at that As oriented pursuant statutes subject for and was not register every year years had the ten Bodyke duty 2950.07(B)(3) (B)(2), 146 R.C. and Ohio community notification. See former 2950.11(A) (F), 2626-2627, II, 2613; Laws, and id. at 2630. Part former R.C. passed Safety the Adam Child Protection Congress Walsh U.S.Code, Act, provided Title financial incentives to seq., Section 16901 et 16925(a). became legislation. for See Section Ohio creating states similar in the to follow and enacted 10. first state nation suit S.B. Bodyke Dann notified Attorney In November General Marc newly pursuant had as Tier III sexual offender enacted
he been reclassified reclassification, Bodyke Tier S.B. 10. As result of the III had new every days had to and also became register that he life requirements 2950.06(B)(3), 2950.07(B)(1), subject community notification. R.C. 2950.11(A). 2950.09(B)(1) the trial court conduct a Former R.C. mandated adjudicate predator whether to an offender to a sexual
hearing and determine II, Laws, Part Former or a habitual sexual offender. 146 Ohio 2950.09(B)(2) (3) listed “determine required weigh the court factors to is a sexual convincing predator.” evidence whether offender See clear Laws, II, If the court found that was not Part 2618-2619. the offender it to in the sentence predator, “specify sexual the statute directed offender’s * * * predator.” that the is not a sexual judgment and the of conviction offender 2950.09(E) required entry the court to its whether had specify Former R.C. *15 Laws, to be sexual offender. 146 Part determined offender a habitual Ohio II, 2624. whether the trial court to determine This statute thus directed
{¶ 73} offender; by implication, a or a habitual sexual predator offender was sexual a oriented offender. See State sexually if an offender was court also determined (“A (1998), 404, 407, sexually oriented St.3d v. Cook oriented offense’ as term ‘sexually one who has committed offender is 2950.01(D) fit of either habitual description but who does not defined R.C. predator”). sex offender or sexual it case, reflects that judgment trial court’s of conviction Bodyke’s Therefore, when the sexually oriented offender.
“adjudicated” Bodyke him, impermissi- it attorney general reclassify Assembly General directed final of a judiciary by mandating reopening bly province invaded a member of performed by that a function be judgment by directing As we stated Bartlett v. State government. the executive branch annul, cannot Legislature 75 N.E. “it is well settled that the Ohio St. * * reverse, already of a court rendered See also modify judgment three of the Wolfinger paragraph 67 Ohio St. 65 N.E. Gompf (“A it existing which is final the laws when is rendered syllabus judgment subject a statute constitutionally subsequently cannot be made to review * * * ”). enacted I 10 is Accordingly, opinion’s holding concur with the lead S.B. attorney in that it a member of the requires general, unconstitutional previously sex offenders who had government, reclassify executive branch of to a final order of a court. adjudicated pursuant been and classified Stare Decisis however, opinion, regarding I dissent from the lead its statements about of the doctrine of stare decisis to constitutional claims. inapplicability to be doing question lead so reaches to decide a that does need opinion resolved at this time. has asserted Initially, party specifically should be noted neither on constitu- play ruling
or briefed the issue what role stare decisis should our question tional We therefore should not raise this on own questions. initiative, explained because as we Sizemore Smith fn. has been the of this court long policy 6 OBR “[i]t * * * by This court should be parties. not to address issues not raised far justice matters for the reason that better served hesitant decide such and lower court consideration before briefing, arguing, when it has the benefit a final determination.” making courts do not system appellate of our adversarial is that premise “The research, essentially legal inquiry [preside] but
sit as self-directed boards *16 284 before argued by parties them.” legal questions presented of arbiters (C.A.D.C.1983), 171, to Proceeding 714 F.2d decide an 177. Regan Carducci v. “ improvident ‘the risk or ill- parties creates “of
issue not briefed * * * process on the adversarial given dependence opinion, [the court’s] advised ’ ” (C.A.Fed.1999), Carbino v. 168 the issues for decision.” West sharpening (C.A.10, 1994),24 32, 35, Internatl. F.3d Corp. F.3d Headrick v. Rockwell quoting (C.A.D.C.1992), 1272, Academy 974 1278, Herbert v. Natl. Sciences quoting 192, F.2d 196. admits, an opportunity we have not had opinion As the lead before constitutionality the reclassification of S.B. provisions
consider the of stare in constitutional interpre- discussion of the role decisis opinion’s lead unnecessary holding to reach its these reclassification tation is doctrine. violate the necessary usually questions rule on that are not to a We decline to hallmark
proper
case. This restriction exists because
disposition
“[a]
judicial
present
controversy.
to rule
those cases that
an actual
only
restraint is
on
question merely
To
for the sake of
simply
hypothetical
do otherwise —to
answer
nothing
advisory
it—would make
than an
board.”
answering
this
more
1210,
But
with less
a far
stating
applies
stare decisis
force
wholly
opinion
it is
lead
proposition
inapplicable,
telling
that it is
authority
no direct
for this overbroad holding.
musters
“vital
Fidelity
precedent
proper
judicial
of the
exercise
* * *
evenhanded,
function
‘is
preferred
promotes
course because
[and]
predictable,
development
and consistent
of legal principles, fosters reliance on
judicial decisions, and
perceived integrity
contributes
the actual and
”
—
process.’
Citizens United
Fed. Election Comm.
U.S.
—
-,
876, 920,
L.Ed.2d-,
130 S.Ct.
quoting Payne v. Tennessee
S.Ct.
{¶ test for 85} departing Galatis, that precedent adopted in v. Ins. Co. 100 Westfield 1256, has no application constitu questions, tional the court in specifically recognized Galatis that “the United Supreme States Court utilized a similar trifold stare decisis test Lawrence v. (2003), 558, 2472, Texas 2482-2483, 539 U.S. 123 [574-578] S.Ct. 156 L.Ed.2d ¶ 48, 508.” Galatis at fn. 5. question Lawrence involved the whether to overrule (1986), 186, Bowers v. 140, Hardwick 478 U.S. 106 S.Ct. 92 L.Ed.2d on the question whether the permits Constitution prosecution for acts of private homo Further, sexual sex. Court Supreme of the United States Lawrence derived the test from Planned Parenthood Pennsylvania Southeastern of Casey (1992), 833, 855,112 2791,120 505 U.S. S.Ct. L.Ed.2d itself which dealt with the question whether to overrule Roe v. Wade 93 S.Ct. on L.Ed.2d question constitutional interpretation. My point is not to plot precise boundaries application stare questions decisis constitutional Rather, issue is not before the court. I —that only it emphasize is no means clear that the doctrine of stare decisis and wholly Galatis test are inapplicable to cases involving constitutional issues. should await a case presenting We concrete and parties actively facts litigating properly briefing question, may reveal arguments additional retaining modifying the Galatis framework in cases of import. constitutional binding power on the statement opinion’s it is that the lead Lastly, ironic not A is no obedience. compels dictum that is itself obiter precedent “was issue point case in which the prior its own dicta from a follow
bound (2006), 546 U.S. College v. Katz Virginia Community fully not debated.” Cent. 945; Williamsburg Cosgrove v. see also 126 S.Ct. 163 L.Ed.2d Co., (1994), 70 Ohio N.E.2d Inc. Mgt. Cincinnati decision “has no effect on this court’s binding dicta in a case prior (explaining case”). in this Virginia long ago Cohens v. explained Chief Justice Marshall As (6 Wheat.) 264, 399, 257, “It maxim not to be is a L.Ed. U.S. are to taken expressions, every opinion, be
disregarded, general they beyond If expressions go in which are used. connection with the case those in a case, may ought judgment not to control they respected, be but for decision.” subsequent very point presented suit when the dicta, it all, should good reason problem “[t]he After cases, a holding unnecessary is that when precedent have the for later force if case, than may thoroughness of a made with less care and to the outcome City Mich.App. it were crucial to the outcome.” Bauer Garden *18 571, 414 N.W.2d in PDK Laborato- of Chief Roberts’s statement I am reminded Justice
{¶ 90}
(C.A.D.C.2004),
ries,
362 F.3d
Drug
Inc.
Adm.
v. United States
Enforcement
J.,
in
in
where he
(Roberts,
part
concurring
judgment),
concurring
not
judicial
“the
of
restraint
if
principle
[is that]
wrote that the
cardinal
more,
necessary
Meyer
it is
not to
more.” In
necessary to decide
decide
Serv., Inc.,
Cupp, J., dissenting. respectfully I dissent.
{¶ 92} errs, view, opinion my The lead holding the reclassification sections of 2007 Am.Sub.S.B. No. 10 and the consequent change and reporting requirements previously for offenders classified law prior under and, therefore, violate the separation-of-powers doctrine render sections new 2950.031 and 2950.032unenforceable. opinion’s The lead premise because a sex-offender classification Megan’s Law is included within the defendant’s criminal judgment (along crime)
with the conviction and sentence for the underlying or in a separate entry (e.g., when the sex-offense predated Law), conviction Megan’s the classification is a final judgment the General Assembly may not overturn or vacate legislative mandate. It is true that the Assembly may General final judgment overturn a
at law by legislative Farm, mandate. Spendthrift Plaut v. Inc. 328; 115 S.Ct. 131 L.Ed.2d Gompf v. Wolfinger 67 Ohio St.
152,
cation to the fact of the criminal conviction. What this court said in describing
new,
the then
different classification
system the
amended
Law also
holds true for
S.B. 10.
State v. Ferguson,
were effected prior under the law does not support the lead opinion’s conclusion they constituted a final judgment. The trial court appellant declared Bodyke to be a “sexually offender,” oriented which was reflected in his sentencing judgment. Appellant Phillips was convicted and sentenced before the effective *19 Megan’s date of effect, Law. After that law went into the trial court notified that it Phillips would consider whether to him classify as a predator. sexual No hearing was held in Phillips’s case to if determine he was a predator, because the state informed the trial court by motion that it did not seek to classify Phillips as a predator. sexual Phillips thus “sexually remained a oriented by offender” virtue of his criminal conviction. Hayden, See State v. 96 Ohio St.3d 2002- ¶ Ohio-4169, 16. Appellant Schwab was declared to abe habitual sexual offender without community-notification requirements, which was memori- in alized his sentencing entry. sentencing The entry for Schwab that states Defendant “[t]he and the State jointly stipulated that the Defendant is an habitual Sexual Offender.” Law, sexually- a conviction of noted, Megan’s under As court has status a offender] on the “automatically conferred [the offense
oriented
by
mandated
offender,”
“is
registration requirement
sexually oriented
¶
{¶ judgment, statutorily an final instead is in effect mandated extols as inviolate notice, sentence, involving the criminal statuto- a matter collateral to inserted into criminal as a ry direction sentence matter convenience. reason, then, nearly It all the courts of good appeals is for have like one the sustains challenge opinion
considered
lead
See,
State,
v.
rejected
e.g.,
App.3d
have
such
Sewell
challenge.
here
(1st
Barker,
280,
{¶ of sex offenders to which new and different General requirements apply, the Assembly assigned officer, attorney administrative task to an executive above, however, For general. the reasons explained requires task neither permits attorney overturn, nor general open, otherwise the final disturb judgments conviction of any Finally, and sentence offender. S.B. 10 makes the general’s attorney subject determination to an to a trial appeal court reclassified offender to that the ensure reclassification accords with new law. Thus, the opinion misapprehends lead the intent both and effect employed by reclassification mechanism Assembly the General 10. Be- S.B. it does not legislatively cause work a reopening mandated of a final decision, above, for the reasons out set also does not offend the fundamental requirements purpose of the separation-of-powers doctrine. I also agree with Justice O’Donnell’s point opinion’s lead
disposition this case on separation-of-powers grounds unnecessary any renders consideration the extent to which stare decisis applies constitutional claims. opinion Because lead not does address the constitutional claims raised (other than appellants separation powers), there no need for the court delve into whether stare requires reject decisis us to challenges constitutional to S.B. 10 on the authority of State v. Cook
570;
v.
State Williams
342;
Ohio St.3d
Ferguson,
Ohio St.3d
N.E.2d 110.
Those decisions
(Cook
rejected
Williams)
challenges
constitutional
to Megan’s Law
and the
S.B. 5 amendments to that
{Ferguson).
law
cases
prior
upholding Megan’s
Our
its
Law and
amendments
not address
did
as has
issue
been
presented
this case. Consequently,
opinion’s
the lead
in this case
ruling
implicate
does
overruling
the test for
precedent contained
Ins.
Westfield
Galatis,
constitutional claims of I also appellants, decline to address them. *21 Leffler, Attorney, appellee. for Prosecuting County Huron
Russell V. Wiedemann, Gamso; Hiltz, Gamso, Jeffrey M. and & Hoolahan and Helmick Allton, Co., L.P.A., appellants. D. for and John Allton & Koch for Chaiten, reversal urging A. Radigan, and Louis Elizabeth C. Day, Jones Assault, for the Treat- Association Against Sexual Iowa Coalition amici curiae Center, A. Detective Robert Abusers, Wetterling Resource Jacob ment Sexual Assault, Against Texas Association Against Sexual Shilling, Coalition California Assault, to End Violence. and National Alliance Sexual Sexual Defender, T. Tobik, Martin Public and John Cuyahoga County L. Robert Defenders, amicus curiae reversal for urging Public Sweeney, Assistant Cullen County Public Defender. Cuyahoga Friedman, Assoc., L.L.C., urging Ian reversal N.
Ian N. Friedman & Lawyers. of Defense amicus curiae Ohio Association A. Defender, K. and Katherine Kelly Curtis Young, Ohio Public Timothy curiae Ohio Public Defenders, reversal for amicus Szudy, urging Public Assistant Defender. Mason, H. Prosecuting Attorney, Mary Cuyahoga County D.
William curiae McGrath, Attorney, affirmance for amicus Prosecuting urging Assistant County Prosecuting Attorney. Cuyahoga O’Brien, Attorney, Taylor, Franklin L. County Prosecuting and Steven
Ron affirmance for amicus curiae state Attorney, urging Prosecuting Assistant Ohio. General, General, Mizer, Benjamin C. Solicitor Cordray, Attorney
Richard
General,
Lieberman,
Schimmer,
M.
Solicitor
David
Deputy
Alexandra T.
Chief
Solicitor,
A.
Solicitor,
Conomy,
P.
Assistant
James
Deputy
Christopher
Attorney
affirmance for amicus curiae Ohio
General.
Hogan, urging
Appellant.
Arnold,
Ohio, Appellee,
The State
Arnold,
290,