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Sex Offender Who Owned Home, Committed Crime Before Residency Law Passed Not Required to Move

2006-2187.  Hyle v. Porter, Slip Opinion No. 2008-Ohio-542.
Hamilton App. No. C-050768, 170 Ohio App.3d 710, 2006-Ohio-5454.  Certified question answered in the negative and judgment reversed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, Lanzinger, and Cupp, JJ., concur.
O'Connor, J., concurs in judgment only.
O'Donnell, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2008/2008-Ohio-542.pdf

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(Feb. 20, 2008) The Supreme Court of Ohio held today that, because a 2003 state law barring certain sex offenders from residing within 1,000 feet of a school does not expressly provide that its provisions apply retrospectively, the statute does not apply to an offender who bought his home and committed his crime before the law took effect. The 6-1 decision was authored by Chief Justice Thomas J. Moyer.

Because the Court found that the residency statute does not apply retroactively, the justices did not reach or decide the issue of whether such a law, if expressly made retroactive by the legislature, would violate the Ohio Constitution’s prohibition against retroactive laws that infringe on an individual’s substantive right.

The case involved a challenge by Gerry Porter to R.C. 2950.031, a state law effective on July 31, 2003, that prohibits certain sexually oriented offenders from “establishing a residence or occupying residential premises” that are within 1,000 feet of any school property. 

Porter purchased a home in 1991 where he lived with his family for 14 years. He was required to register as a sexually oriented offender following his conviction of a sexual battery charge in 1999. Following the legislature’s enactment of the sex offender residency statute, Green Township chief legal officer Francis Hyle sought a court injunction to force Porter to move out of his home because a portion of his property was within 1,000 feet of school premises. Porter opposed the injunction, arguing that the residency statute was unconstitutional as applied to him.

The Hamilton County Court of Common Pleas issued an injunction requiring Porter to move out of his house. On review, the 1st District Court of Appeals affirmed the action of the trial court. However, the 1st District also certified that its decision in this case was in conflict with a 2006 decision by the 2nd District Court of Appeals, Nasal v. Dover, in which that court found the residency restriction was unconstitutional because it retroactively infringed on a sex-offender’s vested right to live in a home he had purchased before the “1,000-foot rule” became law in 2003. The Supreme Court agreed to hear arguments in the case to resolve the conflict between appellate districts.

Writing for the majority in today’s decision, Chief Justice Moyer noted that the Supreme Court’s decisions in Van Fossen v. Babcock and Wilcox Co. (1988) and State v. Consilio (2007) have established a two-part test for reviewing challenges to the retroactive application of a law. “Under this test, we first ask whether the General Assembly expressly made the statute retroactive,” Moyer wrote. “If it has, then we determine whether the statutory restriction is substantive or remedial in nature. ... We do not address the question of constitutional retroactivity unless and until we determine that the General Assembly expressly made the statute retroactive.”

Applying the first prong of the test, the Chief Justice cited a rule of statutory construction set forth in R.C. 1.48 that “(a) statute is presumed to be prospective in its operation (i.e., to apply only to events that take place after the effective date of the law) unless expressly made retrospective.” He wrote: “In order to overcome the presumption that a statute applies prospectively, a statute must ‘clearly proclaim’ its retroactive application. ... Text that supports a mere inference of retroactivity is not sufficient to satisfy this standard; we cannot infer retroactivity from suggestive language.”

In analyzing R.C. 2950.031 under that standard, the Chief Justice rejected arguments by Mr. Hyle that statutory language referring to a person who “has been convicted of” specified categories of sexual offenses and prohibiting such a person to “occupy residential premises” clearly indicated legislative intent for the restriction to apply to a convicted sexual offender who committed his offense and lived in his house before the residency law was enacted.

He pointed to wording in two other Ohio statutes as examples of clear and unequivocal language indicating the legislature’s intent that those laws be applied retroactively.

“Both former R.C. 4121.80(H) and former 2950.09(C)(1) expressly make their provisions applicable to acts committed or facts in existence prior to their effective dates. In addition, R.C. 4121.80(H) expressly proclaimed its applicability in spite of contrary preexisting law by including the phrase, ‘notwithstanding any provisions of any prior statute or rule of law of this state,’” wrote Chief Justice Moyer. “These examples demonstrate that the drafters of legislation know the words to use in order to comply with the Ohio Constitution and the requirement created by the General Assembly (R.C. 1.48). The text of R.C. 2950.031, by contrast, does not feature a clear declaration of retroactivity in either its description of convicted sex offenders or its description of prohibited acts. 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. In the present case, the absence of a clear declaration comparable to the two excerpted above precludes the retrospective application of R.C. 2950.031.”

Chief Justice Moyer’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp.  Justice Maureen O’Connor concurred in judgment only.

Justice Terrence O’Donnell dissented, stating that in his view the plain language of R.C. 2950.031 does clearly indicate legislative intent: 1) that the 1,000-foot residency restriction be applied to sex offenders regardless of whether their crimes were committed before or after the effective date of the statute; and 2) that covered offenders be barred both from “establishing a residence” and from “occupying residential premises” that are within 1,000 feet of a school after July 31, 2003 – regardless of whether an offender “occupied” those premises before the law was enacted.

“If the General Assembly had intended only to prohibit individuals from establishing a residence within 1,000 feet of a school after its adoption of this statute, it did not need to also prohibit those individuals from occupying residential premises – but, it did so,” wrote Justice O’Donnell. “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.

Justice O’Donnell added that, having found clear legislative intent that the challenged statute be applied retroactively, he would go on to hold that the 1,000-foot residency restriction is remedial rather than substantive in nature, and therefore that retroactive application of the statute to require Porter to vacate his home did not violate Porter’s rights under Section 28, Article II of the Ohio Constitution.

David A. Singleton, 513.421.1108, for Gerry Porter.

Paula Adams, 513.946.3228, for Green Township Law Director Francis Hyle and the Hamilton County prosecutor’s office.

William P. Marshall, 614.466.8980, for Amicus Curiae Ohio Attorney General’s Office.