Ohio Supreme Court: ‘Adam Walsh’ Provision Requiring Attorney General to Reclassify Sex Offenders Violates Separation of Powers

6-3-2010 Ohio:

(June 3, 2010) In a narrowly tailored decision announced today, the Supreme Court of Ohio voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorize the state attorney general to reclassify sex offenders who had already been classified by judges under a previous version of the law, “Megan’s Law.” The Court held that the challenged provisions violate the separation-of-powers doctrine of the Ohio Constitution.

Today’s decision leaves in place all of the law enforcement registration and community notification requirements of the AWA applicable to sex offenders who were classified on or after the Jan. 1, 2008, effective date of that law, and reinstates the pre-AWA registration and community notification requirements that judges had ordered offenders to comply with pursuant to Megan’s Law.

In this case, Christian Bodyke, David Schwab and Gerald Phillips were separately convicted of sex-related crimes prior to 2007. Pursuant to the pre-AWA version of Ohio’s sex offender classification statute (known as Megan’s Law), the trial court in which they were convicted conducted a formal hearing in each case at which the judge reviewed factors enumerated in the statute and issued a final order assigning each of the offenders to a classification that imposed a duty of postrelease registration with the sheriff in their county of residence.

In 2007, the General Assembly enacted the AWA, which repealed the former Megan’s Law classification system and replaced it with a new statutory scheme in which persons convicted of sex crimes after the effective date of the act are categorized as Tier I, Tier II or Tier III offenders based solely on the offenses for which they were convicted. The AWA imposes new postrelease registration and community notification requirements for each tier of offenders that are more restrictive in most cases than the requirements imposed on similar offenders under Megan’s Law.

The 2007 legislation also includes provisions, codified in R.C. 2950.031 and 2950.032, that order the state attorney general to reclassify all sex offenders who had previously been classified by a court under the Megan’s Law scheme into one of the three new AWA tiers based solely on the crime for which they were convicted. The attorney general was ordered to notify these prior offenders that their reclassification would be effective Jan. 1, 2008, and that as of that date they would be subject to the new AWA registration and community notification requirements applicable to the tier of offenders into which they had been placed.

Bodyke, Schwab and Phillips received letters from the attorney general in November 2007 notifying them that pursuant to the AWA, as of Jan. 1, 2008, they would be reclassified as Tier III offenders and therefore subject to more stringent registration requirements and to community notification requirements to which they had not been subject under their judicially ordered classification under Megan’s Law. All three men appealed their reclassifications on various constitutional grounds to the 6th District Court of Appeals, which consolidated the cases for review. The 6th District rejected the appellants’ arguments, and affirmed their reclassification under the AWA as constitutional. Bodyke sought and was granted Supreme Court review of the 6th District’s decision.

Writing for a 5-1 majority of the Court in today’s decision, Justice Maureen O’Connor observed that, just as the judicial branch is bound by the constitution to faithfully apply the law as written by the legislature, the legislative and executive branches are barred by the constitution from enacting or enforcing laws that encroach on the powers of the judiciary.

In this case, she wrote: “The AWA’s provisions governing the reclassification of sex offenders already classified by judges under Megan’s Law violate the separation-of-powers doctrine for two related reasons: the reclassification scheme vests the executive branch with authority to review judicial decisions, and it interferes with the judicial power by requiring the reopening of final judgments. It is well settled that a legislature cannot enact laws that revisit a final judgment. We have held for over a century that ‘the Legislature cannot annul, reverse, or modify a judgment of a court already rendered ...’”

Citing the Supreme Court of Ohio’s 1902 decision in Gompf v. Wolfinger, Justice O’Connor wrote: “‘A judgment which is final by the laws existing when it is rendered cannot constitutionally be made subject to review by a statute subsequently enacted ...’ The reclassification scheme in the AWA works to ‘legislatively vacate the settled and journalized final judgments of the judicial branch of government.’ ... (T)he General Assembly cannot vest authority in the attorney general to reopen and revise the final decision of a judge classifying a sex offender.”

“The power to review and affirm, modify, or reverse other courts’ judgments is strictly limited to appellate courts (under) Section 3(B)(2), Article IV, Ohio Constitution. The AWA intrudes on that exclusive role and thus violates the separation-of-powers doctrine. Moreover, once the final judgment has been opened, the AWA requires that the attorney general ‘shall determine’ the new classifications of offenders and delinquent children who were classified by judges under the former statutes. ... In doing so, it violates a second prohibition by assigning to the executive branch the authority to revisit a judicial determination. ... Thus, we conclude that R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders who have already been classified by court order under former law, impermissibly instruct the executive branch to review past decisions of the judicial branch and thereby violate the separation-of-powers doctrine. We further conclude that R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders whose classifications have already been adjudicated by a court and made the subject of a final order, violate the separation-of-powers doctrine by requiring the opening of final judgments.”

The court’s decision also discussed an important legal doctrine, stare decisis, which provides that judges should follow prior, relevant precedent when deciding cases. Justice O’Connor, who authored the 2003 decision that announced the Ohio standard for overruling precedent, Galatis v. Westfield Insurance Co., clarified Ohio law on stare decisis in two important regards. First, quoting from this Court’s 1989 decision in Rocky River v. State Emp. Relations Bd., she reiterated the rule that ‘stare decisis applies to rulings rendered in regard to specific statutes, [but] it is limited to circumstances “where the facts of a subsequent case are substantially the same as a former case.”’ ... Noting that the AWA is substantially different from Megan’s Law, she concluded that the court’s prior decisions that had upheld that the constitutionality of Megan’s Law were not dispositive of Mr. Bodyke’s appeal, which involved a new statute, the AWA.

Second, Justice O’Connor wrote that “there is a more vital and compelling limitation on the doctrine as it has developed in Ohio: its inapplicability to constitutional claims.” Citing the Court’s decision in Rocky River, she noted that the Court then had acknowledged that stare decisis “does not apply with the same force and effect when constitutional interpretation is at issue.” She expressly stated in today’s opinion that “[n]othing in our decision in Galatis suggests otherwise. Rocky River retains its vitality, at least insofar as this principle is concerned: ‘Stare decisis is not inflexibly applicable to constitutional interpretation.’” Thus, as a result of today’s decision, “Stare decisis remains a controlling doctrine in cases presenting questions on the law of contracts, property, and torts, but it is not controlling in cases presenting a constitutional question.”

As the appropriate remedy for the separation of powers violations identified in today’s decision, the Court held that severance (deletion) of the reclassification provisions (R.C. 2950.031 and 2950.032) from the AWA while leaving the remainder of the statute in place would correct the constitutional defect identified by the Court without detracting from “the overriding objective of the General Assembly, i.e. to better protect the public from the recidivism of sex offenders.”

Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton and Judith Ann Lanzinger. Justice Paul E. Pfeifer concurred in the majority’s judgment and syllabus holding.

Justice Terrence O’Donnell entered a separate opinion in which he concurred with the portion of the majority opinion with respect to its decision on separation of powers, but dissented from any discussion of stare decisis, which garnered only three votes, because it is not necessary to the determination of the separation of powers issue.

He wrote: “We usually decline to rule on questions that are not necessary to a proper disposition of a case. ... Here, there is no actual controversy between the parties over how the doctrine of stare decisis should apply when the meaning of the Constitution is at issue, and any attempt to unnecessarily decide that question in this case contravenes well-settled law that this court will not issue advisory opinions. ... I am reminded of (U.S. Supreme Court) Chief Justice Roberts’s statement in PDK Laboratories, Inc. v. United States Drug Enforcement Adm.... where he wrote that the ‘the cardinal principle of judicial restraint [is that] if it is not necessary to decide more, it is necessary not to decide more ...’”

In a separate dissenting opinion, Justice Robert R. Cupp disagreed with the majority’s conclusion that the reclassification provisions of the AWA violate the separation of powers doctrine by empowering the attorney general to overturn or vacate the final judgments of state courts. He wrote that, in his view, the inclusion of Bodyke’s classification as a sexually oriented offender in the trial court’s judgment entry in his case did not elevate that classification to a “final judicial judgment” because the classification was required as a matter of law under the former Megan’s Law scheme as a collateral consequence of Bodyke’s conviction for sexual battery.

Justice Cupp noted that in enacting the AWA, the legislature repealed the former offender categories set forth in Megan’s Law and replaced them with the three tiers of the current classification system. He wrote: “Rather than burden the courts with sifting the hundreds or thousands of sex offenders to which new and different requirements apply, the General Assembly assigned that administrative task to an executive officer, the attorney general. For the reasons explained above, however, this task neither requires nor permits the attorney general to open, overturn, or otherwise disturb the final judgments of conviction and sentence of any offender.” ..Source.. The Supreme Court of Ohio