State v. WilliamsState v. Williams
2007 Am.Sub.S.B. No. 10, as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws.
PFEIFER, J.
Factual and Procedural Background
{¶ 1} In November 2007, appellant, George Williams, was indicted for unlawful sexual contact with a minor, a felony of the fourth degree under
{¶ 3} At his sentencing hearing, Williams was informed that he would be designated a Tier II sex offender under the current version of
{¶ 4} On appeal, Williams argued that the provisions of S.B. 10 cannot constitutionally be applied to a defendant whose offense occurred before July 1, 2007. The court of appeals disagreed and affirmed the decision of the trial court, concluding that “the classification and registration provisions of Senate Bill 10 do not violate the Ohio Constitution‘s ban on retroactive laws.” State v. Williams, 12th Dist. No. CA2008-02-029, 2008-Ohio-6195, ¶ 112.
{¶ 5} We accepted Williams‘s discretionary appeal. State v. Williams, 121 Ohio St.3d 1449, 2009-Ohio-1820, 904 N.E.2d 900.
Analysis
S.B. 10
{¶ 7} The statutory scheme for the classification and registration of sex offenders in effect at the time Williams committed the offense and when he entered his plea, Ohio‘s version of the federal Megan‘s Law,
Prohibition against retroactive laws
{¶ 8}
{¶ 9} In Pratte v. Stewart, 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, ¶ 37, we stated that “[i]t is well established that a statute is substantive if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction, or creates a new right. Van Fossen, 36 Ohio St.3d at 107, 522 N.E.2d 489. Remedial laws, however, are those affecting only the remedy provided, and include laws that merely substitute a new or more appropriate remedy for the enforcement of an existing right.” See Bielat v. Bielat (2000), 87 Ohio St.3d 350, 352-353, 721 N.E.2d 28, quoting Miller v. Hixson (1901), 64 Ohio St. 39, 51, 59 N.E. 749 (“The retroactivity clause nullifies those new laws that ‘reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time [the statute becomes effective]’ ” [bracketed material sic]).
S.B. 5 v. S.B. 10 and remedial v. punitive
{¶ 10} This court has consistently held that ”
{¶ 11} After Cook was issued,
{¶ 12} In a dissent in Ferguson, Justice Lanzinger wrote as follows:
{¶ 13} “Although the majority continues to rely on State v. Cook (1998), 83 Ohio St.3d 404, 409, 700 N.E.2d 570, the first case that considered retroactive application of
{¶ 14} ” ‘The following comparisons show that the current laws are more complicated and restrictive than those at issue in Williams and Cook. First, the label “sexual predator” is now permanent for adult offenders,
{¶ 16} Following the enactment of S.B. 10, all doubt has been removed:
{¶ 17} Under the statutory scheme in effect at the time Williams committed the offense, he was entitled to a hearing at which a court would determine whether he should be classified as a sexual predator, a habitual sex offender or a habitual child-victim offender, or a sexually oriented offender. The court would have considered various statutory factors in making its determination. Former
{¶ 18} Under S.B. 5, Williams might not have been subject to registration requirements. The trial court twice informed Williams that he would not be required to register as a sex offender. Under S.B. 10, based on his classification as a Tier II sex offender, Williams is automatically subject to registration requirements that obligate him to register in person in the county where he resides, in the county where he works, and in the county where he attends school.
{¶ 19} Under S.B. 5, Williams could have been required to register as a sex offender for a period of ten years. Former
{¶ 20} Sex offenders are no longer allowed to challenge their classifications as sex offenders because classification is automatic depending on the offense. Judges no longer review the sex-offender classification. In general, sex offenders are required to register more often and for a longer period of time. They are required to register in person and in several different places.
{¶ 21} No one change compels our conclusion that S.B. 10 is punitive. It is a matter of degree whether a statute is so punitive that its retroactive application is unconstitutional. Cook, 83 Ohio St.3d at 418, 700 N.E.2d 570. When we consider all the changes enacted by S.B. 10 in aggregate, we conclude that imposing the current registration requirements on a sex offender whose crime was committed prior to the enactment of S.B. 10 is punitive. Accordingly, we conclude that S.B. 10, as applied to defendants who committed sex offenses prior to its enactment, violates
Conclusion
{¶ 22} The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders. It may not, however, consistent with the Ohio Constitution, “impose[] new or additional burdens, duties, obligations, or liabilities as to a past transaction.” Pratte, 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, at ¶ 37. If the registration requirements of S.B. 10 are imposed on Williams, the General Assembly has imposed new or additional burdens, duties, obligations, or liabilities as to a past transaction. We conclude that S.B. 10, as applied to Williams and any other sex offender who committed an offense prior to the enactment of S.B. 10, violates
{¶ 23} We reverse the judgment of the court of appeals and remand the cause for resentencing under the law in effect at the time Williams committed the offense.
Judgment reversed
O‘CONNOR, C.J., and LUNDBERG STRATTON, LANZINGER, and MCGEE BROWN, JJ., concur.
O‘DONNELL and CUPP, JJ., dissent.
O‘DONNELL, J., dissenting.
{¶ 24} I respectfully dissent. Consistent with prior holdings of this court in State v. Cook (1998), 83 Ohio St.3d 404, 700 N.E.2d 570, State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, and State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, the registration and notification requirements of 2007 Am.Sub.S.B. No. 10 (“S.B. 10“) are civil in nature and do not violate the Retroactivity Clause of the Ohio Constitution. And every federal circuit court that has considered similar federal sex-offender registration and notification requirements has held that they may be retroactively applied. For these reasons, I would affirm the judgment of the appellate court.
{¶ 25} The Ohio General Assembly has adopted legislation in accordance with legislation enacted by the United States Congress in an effort to create a national, uniform system of sex-offender registration. Our long-standing precedent recognizes the legislature‘s authority to make policy decisions for reasons of public safety and public welfare. Moreover, having considered the constitutionality of prior sex-offender-registration statutes, this court has consistently held both that those statutes constitute a civil regulatory scheme designed to protect the public from known sex offenders and that the statutes may be retroactively applied to individuals who have committed sexually oriented offenses in the past.
{¶ 26} In my view, S.B. 10 does not substantially depart from prior statutory enactments upheld by this court, and today‘s majority decision that it violates the Retroactivity Clause is not only out of sync with our prior precedent,
Sex-Offender Registration
{¶ 27} The question whether S.B. 10 violates the Retroactivity Clause requires a review of the prior sex-offender-registration statutes, Am.Sub.H.B. No. 180 (“H.B. 180“), 146 Ohio Laws, Part II, 2560, subsequently amended by Am.Sub.S.B. No. 5 (“S.B. 5“), 150 Ohio Laws, Part IV, 6558, and our decisions interpreting those statutes.
Megan‘s Law
{¶ 28} In 1996, the General Assembly enacted H.B. 180, better known as “Megan‘s Law.” That act revised
{¶ 29} Megan‘s Law divided sex offenders into three categories — sexually oriented offenders, habitual sex offenders, and sexual predators. See former
{¶ 30} The General Assembly reserved the most stringent reporting requirements for offenders who had either been convicted of a sexual-predator specification or adjudicated by a court to be a sexual predator. In order to adjudicate an offender as a sexual predator, the trial court had to conduct a hearing to consider the offender‘s likelihood of reoffending, at which the offender had the right to counsel, to testify on his own behalf, and to cross-examine witnesses. Former
{¶ 31} Megan‘s Law required all sex offenders to register with the sheriff in the county in which they resided or were temporarily domiciled for more than seven days. Former
Constitutional Challenges to Megan‘s Law
{¶ 32} We have considered several challenges to the constitutionality of Megan‘s Law involving retroactivity, ex post facto, and due-process concerns, and in each case, our analysis addressed whether the requirements the law enacted were punitive or civil in nature.
{¶ 34} Additionally, in Cook, we rejected an ex post facto challenge to Megan‘s Law, explaining that the statute did not contain any language expressing an intent to punish sex offenders for prior conduct, id. at 417. Nor could it be considered punitive in practical effect, id. at 423. Rather, the statutory scheme furthered the stated legislative purpose of protecting the public from sexual offenders. Id. While weighing the seven nonexhaustive guideposts set forth in Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644,1 we determined that the act did not impose a new affirmative disability or further the traditional aims of punishment, but imposed an inconvenience comparable to the renewal of a driver‘s license. Cook at 418, 420. Because we concluded that the registration requirements were not punitive, but remedial, in
{¶ 35} In State v. Williams (2000), 88 Ohio St.3d 513, 528, 728 N.E.2d 342, we relied upon our decision in Cook and held that because Megan‘s Law did not impose punishment, it necessarily did not violate the Double Jeopardy Clauses of the Constitutions of the United States and the state of Ohio.
{¶ 36} In State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, we considered whether Megan‘s Law violated an offender‘s right to procedural due process afforded by the United States and Ohio Constitutions by imposing a sex-offender-classification-and-registration requirement without first conducting a hearing. Adhering to our holdings in Cook and Williams, we determined that an offender suffers neither bodily restraint nor punishment as a result of the de minimis registration requirements imposed by Megan‘s Law; thus, classification did not interfere with a protected liberty or property interest, and due process did not require a court to conduct a hearing before finding a defendant to be a sexually oriented offender. Id. at ¶ 14-15, 18.
S.B. 5
{¶ 37} In 2003, the General Assembly enacted S.B. 5, amending Megan‘s Law to provide that regardless of when a sexually oriented offense that is not registration-exempt occurred, sex offenders had to personally register with the sheriff of the county in which they (a) resided or were temporarily domiciled for more than five days, (b) attended school, and/or (c) worked for more than 14 days or for an aggregate of 30 days in a calendar year. Former
Constitutional Challenges to S.B. 5
{¶ 38} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, we considered whether Megan‘s Law remained a civil, regulatory scheme following its amendment by S.B. 5. The issue in Wilson concerned whether an appellate court should apply a civil or criminal standard of review to a trial court decision not to classify an offender as a sexual predator. Adhering to our decisions in Cook and Williams, we held that sex-offender-classification proceedings were not criminal in nature, id. at ¶ 32, notwithstanding any increased burdens and reporting requirements established by S.B. 5. We therefore concluded that courts reviewing the outcome of sexual-predator-classification hearings should apply the civil manifest-weight-of-the-evidence standard and affirm a trial court judgment if it was supported by some competent, credible evidence. Wilson at ¶ 32.
{¶ 39} In State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, we addressed retroactivity and ex post facto challenges to
S.B. 10 – The Adam Walsh Act
{¶ 40} On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act (“Adam Walsh Act“) with the express intent “[t]o protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.” Title of the Adam Walsh Child Protection and Safety Act, Pub.L. 109-248, 120 Stat. 587. The act establishes the Sex Offender Registration and Notification Act (“SORNA“) with the stated purpose of creating uniform national classification and reporting standards to protect the public from sex offenders and child-victim-oriented offenders.
{¶ 41} To comply with the Adam Walsh Act, the General Assembly passed S.B. 10 in June 2007. S.B. 10 repealed Ohio‘s prior sex-offender-classification scheme, replacing it with a three-tiered system classifying offenders automatically based on the offense of conviction: an adult Tier I offender is
{¶ 42} As did the S.B. 5 amendments to Megan‘s Law, S.B. 10 also requires offenders to personally register with the sheriff of the county or counties in which they reside, attend school, and work.
{¶ 43} Additionally,
S.B. 10 is a Civil Remedial Scheme
{¶ 44} The enactment of S.B. 10 has brought the same types of challenges to its constitutionality that we previously considered and rejected in our review of Megan‘s Law and its amendments. Adherence to the rule of law established in our prior decisions requires the rejection of these new arguments because S.B. 10 has not significantly altered the regulatory system of sex-offender registration.
{¶ 45} There is no dispute that the General Assembly intended the provisions of S.B. 10 to apply retroactively. Thus, for purposes of determining whether S.B. 10 violates the Retroactivity Clause of the Ohio Constitution, the question is whether the statute ” ‘takes away or impairs vested rights acquired
{¶ 46} Nonetheless, we clarified in Ferguson that “Ohio retroactivity analysis does not prohibit all increased burdens; it prohibits only increased punishment.” 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, at ¶ 39. Further, as we explained in State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, a statute that operates retroactively is not unconstitutional if it is a remedial law, which we have defined to mean “those laws affecting merely ’ “the methods and procedure[s] by which rights are recognized, protected and enforced, not * * * the rights themselves.” ’ ” (Emphasis sic.) Id. at ¶ 15, quoting Bielat v. Bielat (2000), 87 Ohio St.3d 350, 354, 721 N.E.2d 28, quoting Weil v. Taxicabs of Cincinnati, Inc. (1942), 139 Ohio St. 198, 205, 22 O.O. 205, 39 N.E.2d 148.
{¶ 47} S.B. 10 does not provide for the infliction of punishment on sex offenders and therefore is a remedial law. The General Assembly expressed its intent to establish a civil, remedial system designed to “protect the safety and general welfare of the people of this state” and to “assur[e] public protection,”
{¶ 48} Further, this court has very recently determined that S.B. 10 is a civil, remedial law, explaining in State v. Clayborn, 125 Ohio St.3d 450, 2010-Ohio-2123, 928 N.E.2d 1093, that “sex-offender-classification proceedings are
{¶ 49} Contrary to the majority‘s position, the fact that the sex-offender-registration provisions appear in the criminal code and that the classification categories are directly linked to convictions for specific offenses does not make S.B. 10 punitive in nature. Rather, the General Assembly found that a past conviction for a sex offense is an indication of the present threat that a sex offender poses to the public, and we have previously recognized that the legislature may “us[e] past events to establish current status.” Cook, 83 Ohio St.3d at 412, 700 N.E.2d 570.
{¶ 50} While the legislature could have employed an individualized risk assessment of the danger posed by a sex offender, no constitutional mandate exists requiring that such measures be used. See Smith v. Doe (2003), 538 U.S. 84, 104, 123 S.Ct. 1140, 155 L.Ed.2d 164 (the “determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment” for purposes of the Ex Post Facto Clause).
{¶ 51} Moreover, as part of the national system of sex-offender registration and notification, and in response to the federal mandate for states to comply or risk losing federal funds otherwise allocated to them,
{¶ 52} Thus, the purpose of classifying all sex offenders into tiers based on the offense of conviction is not to punish an offender. Rather, the General Assembly sought to establish a system that provides for the efficient sharing of information about sex offenders necessary to safeguard the public from potentially dangerous individuals.
{¶ 53} The provisions of S.B. 10 do require sex offenders to register more often, in more places, and for a longer period of time than formerly required by prior laws, but this does not mean that the statute violates the Retroactivity Clause. As the court explained in Cook, “where no vested right has been created, ‘a later enactment will not burden or attach a new disability to a past transaction or consideration in the constitutional sense, unless the past transaction or consideration * * * created at least a reasonable expectation of finality.’ ” Cook, 83 Ohio St.3d at 412, 700 N.E.2d 570, quoting State ex rel. Matz v. Brown (1988), 37 Ohio St.3d 279, 281, 525 N.E.2d 805. Nonetheless, the court emphasized that ” ‘[e]xcept with regard to constitutional protections against ex post facto laws * * * felons have no reasonable right to expect that their conduct will never thereafter be made the subject of legislation.’ ” (Emphasis sic.) Id., quoting Matz at 281-282.
{¶ 54} Because S.B. 10 does not inflict punishment on sex offenders for past crimes, applying its provisions to defendants who committed sex offenses prior to the date of its enactment does not violate the Retroactivity Clause.
{¶ 56} Because the practical effect of the statute did not negate the legislature‘s stated intent to establish a civil regulatory scheme, the United States Supreme Court held that it did not impose punishment and therefore did not violate the Ex Post Facto Clause of the United States Constitution. Id. at 105-106.
{¶ 57} Moreover, every federal circuit court of appeals to consider whether the Sex Offender Registration and Notification Act (SORNA), passed by Congress as part of the federal Adam Walsh Act, is constitutional has held that it may be retroactively applied to sex offenders who committed sex offenses prior to its enactment. See United States v. DiTomasso (C.A.1, 2010), 621 F.3d 17, 25; United States v. Guzman (C.A.2, 2010), 591 F.3d 83, 94; United States v. Shenandoah (C.A.3, 2010), 595 F.3d 151, 158-159; United States v. Gould (C.A.4, 2009), 568 F.3d 459, 466; United States v. Young (C.A.5, 2009), 585 F.3d 199, 203-206; United States v. Samuels (C.A.6, 2009), 319 Fed.Appx. 389, 394-395, whose overruling on other grounds was recognized by United States v. Utesch (C.A.6, 2010), 596 F.3d 302, 309, fn .6; United States v. May (C.A.8, 2008), 535 F.3d 912, 919-920; United States v. George (C.A.9, 2010), 625 F.3d 1124, 1131; United States v. Hinckley (C.A.10, 2008), 550 F.3d 926, 936-938; United States v. Ambert (C.A.11, 2009), 561 F.3d 1202, 1207.
{¶ 58} As the Seventh Circuit Court of Appeals recently explained in United States v. Leach (C.A.7, 2011), 639 F.3d 769, 773, “whether a comprehensive registration regime targeting only sex offenders is penal * * * is not an open question. In Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the Supreme Court held that an Alaska sex offender registration and notification statute posed no ex post facto violation because it was a civil, rather than penal, statute.* * * Leach has not identified any aspects of SORNA‘s registration provisions that distinguish this case from Smith. This is unsurprising, since we too are unable to find any meaningful distinctions. Therefore, we join our sister circuits in concluding that SORNA is not an ex post facto law.”
{¶ 59} There are no significant differences between Megan‘s Law, which this court has previously upheld, and S.B. 10, which conforms to the registration and notification requirements that have been upheld by federal circuit courts. In accordance with our precedent and in agreement with the federal circuit courts, I would hold that S.B. 10 is constitutional because it is a civil, remedial enactment designed to protect the welfare and safety of the public.
Conclusion
{¶ 60} Little justification exists to abandon the reasoning and conclusions set forth in the prior decisions of this court, especially in the context of a new statute that does nothing more than change the frequency and duration of reporting requirements imposed on sex offenders.
{¶ 61} For these reasons, I would affirm the judgment of the court of appeals and hold that S.B. 10 does not violate the Retroactivity Clause of the Ohio Constitution.
CUPP, J., concurs in the foregoing opinion.