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February 20, 2008
More on the Ohio SCt decision on sex offender statute
The case about the Ohio sex offender residency restriction statute that we discussed Wednesday in class is Hyle v. Porter, No. 2008-Ohio-542 (Ohio S. Ct. Feb. 20, 2008) (available here), and I now mean to make official that it is part of the required reading for Friday's class and beyond. Also, in case you are interested, the full text of the statute at issue in Hyle v. Porter can be accessed here.
In addition, you can and should keep an eye on my SL&P blog coverage of the case, as well as media coverage. In this early report from the Columbus Dispatch, for example, the headline is "High court says sex offender need not move." Is that really what the Ohio Supreme Court "says" in Hyle v. Porter?
UPDATE: I found interesting the different headlines in the various major Ohio newspaper reports about Hyle v. Porter. Here they are:
- From the Cincinnati Enquirer, "Sex offenders going home"
- From the Cleveland Plain-Dealer, "Sex offender law not retroactive, Ohio Supreme Court rules"
- From the Columbus Dispatch, "Court: Not all sex offenders must move"
February 20, 2008 in Interesting statutes and cases | Permalink
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In addition to mainstream media, below is coverage targeted specifically to Capitol Square from Gongwer News (accessible through the law library), e.g. this is what the state legislators will pay attention to...
SUPREME COURT WON'T HEAR OSU APPEAL OF $2.5 MILLION AWARD TO EX-COACH, RULES SEX OFFENDER CANNOT BE FORCED FROM HOME
A split Ohio Supreme Court cleared the way Wednesday for a big payday for ex-Ohio State University basketball coach Jim O'Brien. Justices let stand a $2.46 million award he won in a breach of contract lawsuit over his firing in 2004.
Acting on other matters, the court:
--Ruled that a sex offender in Hamilton County does not have to move from his home because he bought it and committed his crime before a law that restricts residency near schools took effect.
Sex Offenders: Justices held in a 6-1 opinion that a 2003 law that bars certain sex offenders from residing within 1,000 feet of a school does not apply to persons who bought their homes and committed their crimes before the law took effect.
The court said the statute in question does not expressly provide that its provisions apply retroactively.
As a result, justices did not decide the issue of whether such a law - even if legislators expressly made it retroactive - would violate a prohibition in the Ohio Constitution against retroactive laws that infringe on substantive individual rights.
The decision came in a case from Hamilton County in which Gerry Porter bought a house in 1991 where he lived with his family for 14 years. A sexual battery conviction in 1999 required him to register as a sexually oriented offender.
After the General Assembly enacted the residency restriction near schools in 2003, local officials sought a court order to force Mr. Porter to move. A Hamilton County common pleas judge granted the injunction, and the 1st District Court of Appeals affirmed the action.
The Supreme Court reversed the lower rulings in a decision that Chief Justice Moyer authored.
"The text of (the statute) ... does not feature a clear declaration of retroactivity in either its description of convicted sex offenders or its description of prohibited acts," Justice Moyer said. "The statute does not proclaim its applicability to acts committed or facts in existence prior to the effective date of the statute or otherwise declare its retroactive application."
Concurring were Justices Pfeifer, Stratton, Lanzinger, Cupp,
and O'Connor. Justice O'Donnell dissented.
Justice O'Donnell said he believed the statute clearly indicates legislators intended to bar offenders from residing within 1,000 feet of a school regardless of whether they lived there before the law was enacted.
"The General Assembly, in choosing to prohibit both the establishment of a residence and the occupation of a residential premises, intended to preclude present and future conduct regarding the location of a residence of persons described in this statute; and it did so by using language to preclude both establishing a residence or occupying one," he said.
Posted by: C Ingram | Feb 20, 2008 7:33:32 PM
I think these sex offender statutes raise some extremely interesting ideas. First, there is a tension that we discussed in criminal law between having sex offenders serve their time and "pay their debt" and then still having to register and be branded in the community - being punished after they have already been punished. Second, there is the tension between a community's right to be "safe" and the individual's right to live somewhere with some liberty or privacy(great recent articles: http://www.cbsnews.com/stories/2008/02/06/national/main3797416.shtml?source=RSSattr=U.S._3797416
&
http://www.cnn.com/2007/US/10/17/trailer.sexoffender/index.html).
We would theoretically want sex offenders to be rehabilitated and become productive members of society, but these laws pretty much prevent that - it's difficult for them to get jobs, live normally, etc.
Third, I am extremely interested to get class input on what everyone thinks about how these sex offender registries affect juvenile offenders. The majority of cases I encountered as a Victim Advocate in the Juvenile Division of the Prosecutor's office involved offender/victim relationships that were either intra-family or between families who were good friends. That leads to parents not wanting to pursue prosecution of the juvenile offender because although they feel like the child needs help/therapy, they do not want the child to be forever branded a sex offender (which is an option - and certain sex offenses do not get wiped off a juvenile's record when he or she turns 21). Should a child be branded as a sex offender for life because of something they did when they were 13/14/etc? There are also issues of schooling - where should juvenile sex offenders go to school? With other children, even if they're of the same age as the children the offender victimized? At some special school? If the juvenile offenders are sent to a detention facility, should they be housed with other children that can lead to the same issues as the schooling? Should the sex offenders be housed together?
Posted by: Kristen T. | Feb 20, 2008 10:28:48 PM
I'm sorry, above I meant when he/she turns 18 (although some monitoring in juvenile cases by the juvenile court system does endure for multiple years after the juvenile turns 18).
Some of the requirements for both adult and juvenile offenders can be found below:
http://www.sexcriminals.com/megans-law/us/ohio/
Posted by: Kristen T. | Feb 20, 2008 10:36:37 PM
In conclusion to my blog-novel, I would like to say that as a prosecutor (my who), I struggle mightily with the juvenile offender issues presented above. I am torn between getting justice for the victim (especially because justice can come in different forms for different victims), and recognizing that the offender is still a youth and perhaps should have more of a chance for rehabilitation or re-integration, even after committing some truly heinous or appalling crimes. Many times I have to look beyond my personal revulsion to fairly negotiate terms of a plea deal that will satisfy all involved parties and public welfare in general.
Posted by: Kristen T. | Feb 21, 2008 12:20:04 AM
I find the headlines here striking...I'm wondering how much of the headline in each of these cities has to do with demographics (most notably political).
I think the Dispatch headline is probably manages to be the least charged...hard for me to swallow as a Plain Dealer guy.
I read all three on a regular basis, and this is yet another example about how my "who's" (major media figure) views are shaped by the folks who read my stuff. It's why Fox News panders to conservatives, MSNBC and NPR to liberals, and CNN tries to shoot the middle.
That's a real "thing that makes you go HMMM...."
Posted by: Brad Cromes | Feb 21, 2008 11:31:04 PM
I just wanted to clarify that the statute relevant to this opinion was from 2003 - the link on the post points to the current Code section that was enacted in 2007. The relevant code section has been amended (twice since enactment) into 2950.034. In its entirety, the section read (2003):
"Sec. 2950.031. (A) No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to either a sexually oriented offense that is not a registration-exempt sexually oriented offense or a child-victim oriented offense shall establish a residence or occupy residential premises within one thousand feet of any school premises.
(B) An owner or lessee of real property that is located within one thousand feet of any school premises has a cause of action for injunctive relief against a person who violates division (A) of this section by establishing a residence or occupying residential premises within one thousand feet of those school premises. The owner or lessee shall not be required to prove irreparable harm in order to obtain the relief."
http://www.legislature.state.oh.us/BillText125/125_SB_5_ENR.html (There's a typo in the slip opinion - it was SB 5, not HB 5...)
Current version of the statute: http://codes.ohio.gov/orc/2950.034
Also, while not directly on point, I thought it was interesting the majority didn't mention a temporary law section that was in the bill to buttress their point; namely that the a residential premises obtained via rental agreement was expressly prospective. Although, perhaps b/c that section was more relevant to division (B) (and intended to clarify that the General Assembly did not want to modify existing contracts) it was too attenuated...
The language (note this was temporary law):
"SECTION 8 . Sections 1923.01, 1923.02, 1923.051, 5321.01, and 5321.03 of the Revised Code, as amended by this act, and sections 2950.031 and 5321.051 of the Revised Code, as enacted by this act, apply to rental agreements entered into on or after the effective date of this act."
Posted by: C Ingram | Feb 21, 2008 11:34:37 PM
I know I have come across cases on the issue of whether a law should apply retrospectively or not. But I have an elementary (and probably dumb) question. Doesn't the constitutional limitation on Ex Post Facto laws prevent laws from applying retroactively? I think one of the articles mentions this as being a possible issue as well.
Posted by: Lija | Feb 22, 2008 12:27:01 PM
Kristen, that Florida article is great. I'd read that one a while back and that was the first thing I thought of when this topic came up. Sex offenders are like such an interesting topic, because I mean come on - who likes a sex offender? Who wants one living in their proximity? Pretty much nobody, at the same time, they still have at least some rights.
Lija, I think, and I could be wrong the answer to your Ex Post Facto question is that they can't be convicted of a crime when they committed it before the law was created. Here Porter was already convicted, its just a question of whether or not he's violating this statute, essentially this became a property dispute based on a statute, not a criminal case. Retroactivity and ex post facto are different. If the statute was meant to be retroactive, then they would have to examine the constitutionality of it, which the court talks about in this case (and the majority didn't want to touch it, they never got there, the dissent said its all good since its a justified goal, it seemed like the court recognized a 2 part test like the one we learned about in Con. law today in regard to the Beazer case)
OH WAIT
I just found this guy on the eSORN website!
http://www.esorn.ag.state.oh.us/Secured/p23.aspx?oid=12544
Apparently he has some interesting tattoos and drives a bug, or a chevy.
Posted by: Scott Rowley | Feb 22, 2008 1:25:54 PM
I found a site that allows you to search for where sex offenders live in relation to your address. Despite the name of the site, Family Watchdog, the maps are pretty interesting (assuming that the data is accurate). The distribution of where sex offenders live in Columbus is almost directly correlated with the price of real estate, i.e. there are huge clusters of sex offenders living in "shotty" parts of the city while there are only a few scattered sex offenders living in nice suburbs.
Like Kristen, I find it extremely disturbing that sex offenders "pay their debt" just like every other type of offender, and then are subject to further restrictions on their liberties and further social condemnation.
Check out the site at:
http://www.familywatchdog.us/.
Posted by: Nikki Swift | Feb 22, 2008 4:17:27 PM
In response to Lija's post:
You should understand that the posting of a sex offender registration , or the distribution of such information by anyone other than law enforcement is a crime. This link should be removed immediately. These sex offender laws have gone far enough now that there is a widespread outrage, and not only from sex offenders. The amount of misinformation, and outright false information, in the media and online is astounding and damaging. From Cable TV anchors siting false and unsubstantiated recidivism rates to angry hateful online citizens calling for death or torture of sec offenders, to this type of widespread ignorance of dissemination of registration information. We have a vast torrent of accurate information and legal news on the sex offender law debacle in Ohio at www.constitutionalfights.org
Posted by: constitutionalfights | Feb 26, 2008 3:56:52 AM
In response to Lija's post:
You should understand that the posting of a sex offender registration , or the distribution of such information by anyone other than law enforcement is a crime. This link should be removed immediately. These sex offender laws have gone far enough now that there is a widespread outrage, and not only from sex offenders. The amount of misinformation, and outright false information, in the media and online is astounding and damaging; from Cable TV anchors citing false and unsubstantiated recidivism rates, to angry hateful online citizens calling for death or torture of sec offenders, to this type of widespread ignorance about dissemination of registration information. We have a vast torrent of accurate information and legal news on the sex offender law debacle in Ohio at www.constitutionalfights.org
Posted by: constitutionalfights | Feb 26, 2008 4:01:17 AM
I'd be very interested in seeing the text of the statute making it a crime to discuss or post public court information regarding sex offenders.
Posted by: Michael Wilt | Feb 26, 2008 8:04:49 AM
In response to Constitutionalfights' post:
I fail to see how my question about ex post facto laws is an illegal distribution of sex offender registration. But in the future I guess I will have to watch out for that.
Posted by: Lija | Feb 26, 2008 2:45:52 PM
Regarding ex post facto laws, does that just apply in the event of criminal law? Is it possible to claim that these restrictions are civil in nature as a means of avoiding the whole ex post facto issue?
Posted by: tnittle | Feb 26, 2008 3:11:31 PM
Lija,
I don’t think you actually need to sweat your linking to http://www.familywatchdog.us/. While courts in the DeCSS case (Universal v. Remierdes) have found that linking can be illegal, it involved linking to information used to circumvent the CSS encoding system for DVDs. Simply providing information that tells people where to find a sex offender registration site should be permissible. Had you started posting detailed information about sexual predators on the blog, then there might be a grievance. Otherwise I’d look at this as an attempt to limit free speech (even if the speech is just a URL). While laws do exist that prevent using this information to harass sex offenders, there doesn’t appear to be a limitation on telling people where to find a sex offender database, which is all you have done. If that particular database is illegal is another matter. While some sex offender registries are not considered public record, there doesn’t appear to be anything patently illegal on that site, at least on first blush. The only possible issue that I can see is that the database there isn't run by the state but by an interested party. Still, it's only a collection of information from these databases, and the user still has to request the information themselves as opposed to stumbling upon detailed information of a criminal.
The DOJ has a listing of how Sex Offender law has developed over the last 14 years. It includes information on the development of laws creating, expanding and mandating the expansion and development of sex offender databases. I didn't see anything about this sort of thing being illegal, but there's a good chance that I missed it.
http://www.ojp.usdoj.gov/smart/legislation.htm
Posted by: Sam | Feb 26, 2008 4:36:24 PM
Yeah... I think the way these postings work is confusing. I didn't post that. So all comments regarding the website should not be directed at me. But the information is interesting, and I'll be sure to use it next time I am accosted by Constitutionalfights over the blog for something I didn't write.
Posted by: Lija | Feb 26, 2008 6:11:52 PM
Lija and Sam, I'm pretty sure that ConstitutionalFights was referencing my post, made on February 22 at 1:25 PM, although I agree, the lines on the blog are a little confusing and it could be visually clearer who wrote what on here.
To Constitutionalfights: Before you go accusing me (actually you accused Lija, you didn't even get the right person) of doing something illegal, how about you get some law to back it up. And no, a link to some other blog doesn't count. What law did I violate? Is it statutory or case-law? What statute or case? I'm waiting for your answer.
My thought - constitutionalfights is not in our class, and is just the blogger running that website, trying to get more traffic to it. Keep in mind this post was made at 3:56 and 4:01 AM, which one of us law students would be awake then anyway? This also explains why the post is not substantive in terms of what we are talking about and is completely focused on getting people to look at some other blog.
Posted by: Scott Rowley | Feb 27, 2008 3:48:46 PM
I am very sorry if I bullied into a classroom, closed forum. And I apologize if I reacted to the wrong person. The moderator is welcome to remove all of my posts with my sincere apologies. I am indeed trying to get traffic to our community action blog to fight this log and it is in fact illegal to publicly reveal registered sex offender information, other than by law enforcement. See any local or county sheriff web registration page and you can read that yourself.
Posted by: constitutionalfights.org | Apr 1, 2008 2:29:30 AM
Example: Idaho Exemption from Civil Liablity. Section 18-8325 (states always have laws similar to this):
No person or governmental entity, other than those specifically charged in this chapter with a duty to collect information under this chapter regarding registered sexual offenders, has a duty to inquire, investigate or disclose any information regarding registered sexual offenders.
Posted by: constitutionalfights.org | Apr 1, 2008 2:40:32 AM
I think the entirety of Idaho Code Section 18-8325 and Idaho Code Section 18-8326 are relevant to this conversation.
§ 18-8325. Exemption from civil liability
(1) No person or governmental entity, other than those specifically charged in this chapter with a duty to collect information under this chapter regarding registered sexual offenders, has a duty to inquire, investigate or disclose any information regarding registered sexual offenders.
(2) No person or governmental entity, other than those specifically charged in this chapter with an affirmative duty to provide public access to information regarding registered sexual offenders, shall be held liable for any failure to disclose any information regarding registered sexual offenders to any other person or entity.
(3) Every person or governmental entity who, acting without malice or criminal intent, obtains or disseminates information under this chapter shall be immune from civil liability for any damages claimed as a result of such disclosures made or received.
§ 18-8326. Penalties for vigilantism or other misuse of information obtained under this chapter
Any person who uses information obtained pursuant to this chapter to commit a crime or to cause physical harm to any person or damage to property shall be guilty of a misdemeanor and, in addition to any other punishment, be subject to imprisonment in the county jail for a period not to exceed one (1) year, or by a fine not to exceed one thousand dollars ($1,000) or both.
Posted by: T. Nittle | Apr 2, 2008 2:48:00 PM
Constitutionalfights - welcome back, it has been too long. This is not a "closed forum", you are very welcome to post here. I believe Prof. Berman would agree, but correct me if I am wrong. This is a first year legislation course at the Moritz College of Law at The Ohio State University. We have actually spent a good deal of time in class talking about sex-offender related issues, perhaps more than is reflected on this website. Clearly this is an important issue to you, as it is to many of us, and if you have some insights then I hope you share them.
Tim- thank you for showing us all what the statute actually says.
Obviously, I was acting pursuant to § 18-8325(3), without malice or criminal intent and am therefore immune from civil liability. Wow - immunity feels good, like I'm a superhero, or maybe I should be a contestant on survivor.
But wait, we aren't in Idaho. Gerry Porter and the Ohio eSORN website don't have anything to do with Idaho. So maybe there is something in Ohio that looks similar, but having spent 30 minutes looking for it and not finding it, I don't think it exists.
The Ohio eSORN website (http://www.ag.state.oh.us/citizen/esorn.asp) says:
"Providing easy access to this web site gives more information to the public and helps make our communities safer" So even if I'm not "immune" yet, at least I'm making communities safer by helping to provide access to the information. I certainly do so with no personal animus towards Mr. Porter.
Constitutionalfights would do well to recall that criminal convictions contain within them a moral condemnation of the accused. This is not to say that the convict as a person is FOREVER bad, icky, or evil, but it reflects the view that "the people", who are on the other side of the "v.", can continue to make rules surrounding and relating to that conviction.
Here in the State of Ohio, the people have also decided, rightly or wrongly, to impose certain residency restrictions on sex offenders. It is by that same power that convicted Gerry Porter in the first place that told him he couldn't live within 1000 feet of a school. The law was extremely clear, at least on this point, it applied to anyone who "has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to a sexually oriented offense or a child-victim oriented offense". The Supreme Court didn't like what "the people" had decided, they thought, for whatever reason, that at least part of what is now ORC 2950.034 should go away. So it was not the AG's office who lost, it was the will of the people being stifled by activist judges that care more about their own agenda and image than about what the law actually says. Frankly, I'd much more appreciate a little intellectual honesty about what they are doing. How are these Justices any different than politicians?
Posted by: Scott Rowley | Apr 3, 2008 11:19:24 AM
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