Ohio Supreme Court: Give sex offenders old classifications

6-3-2010 Ohio:

COLUMBUS, Ohio — The Ohio Supreme Court on Thursday threw out sections of a new sex-offender law, saying the Legislature violated the constitution when it forced state officials to change convicts' classifications to comply with federal Adam Walsh Act provisions.

The ruling means that sex offenders convicted before the law went into effect on Jan. 1, 2008, would revert back to the classifications they received under the old Megan's Law — and potentially be subject to less stringent registration and notification requirements. The ruling leaves in place the new, tougher requirements for those convicted since.

A spokeswoman for state Attorney General Richard Cordray said the office was working to identify how many offenders would be affected by the ruling.

Ohio was the first state to put substantially in place a new sex offender registration and notification system required by the federal Adam Walsh Child Protection and Safety Act. Delaware and Florida have since complied. The 2006 law is named for a 6-year-old Florida boy who was abducted and killed in 1981. His father, John Walsh, is the host of TV's "America's Most Wanted."

The U.S. law, signed by President George W. Bush, sought to get states to better coordinate and expand their sex-offender registries.

In its 5-1 decision, the high court said that Ohio's implementation violated the separation of powers among branches of government because the Legislature was forcing the executive branch to revisit decisions made by judges.

Under Ohio's new Adam Walsh Law, old Megan's Law classifications such as "sexually-oriented criminal" or "sexual predator" were replaced with a tiered classification system. Offenders were moved into the new tiers based solely on the offense they had committed, whereas Megan's Law had allowed judges to hold a hearing and use some discretion in assigning offenders a category.

Writing for the majority, Justice Maureen O'Connor said the earlier judges' decisions were binding. Only courts can change the decisions of courts.

"It is well settled that a legislature cannot enact laws that revisit a final judgment," she wrote. "We have held for over a century that 'the Legislature cannot annul, reverse, or modify a judgment of a court already rendered.'"

The case decided Thursday involved three men convicted of sex-related crimes in 2007. The three — Christian Bodyke, David Schwab and Gerald Phillips — underwent formal hearings called for under the old law and were assigned categories that required postrelease registration with the sheriff in the county where they live.

In November 2007, they received letters from the attorney general saying the law had been changed and, as of Jan. 1, 2008, they would considered Tier III offenders. The reclassification subjected them to more stringent registration and community-notification requirements.

Thursday's ruling marked the second legal setback this year to efforts by state lawmakers to apply the tough new national sex offender law's provisions.

In a unanimous decision in March, justices found that the new Ohio law's wording on community notification conflicted with its intention.

Lawmakers had intended for communities to be notified every time a sex offender in the most severe category began living, working or going to school in their neighborhoods, but the high court found that the law's language allowed the sex offenders to avoid the reporting requirements under exceptions similar to those in the older law.

State Sen. Tim Grendell, chairman of the Judiciary Committee on Criminal Justice, said lawmakers are working to address both issues.

"Today's decision does not address or invalidate our overall efforts to protect the public by passing the Adam Walsh Act," he said in a statement.

Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger, Paul Pfeifer and Terrence O'Donnell joined O'Connor in agreeing with the majority on the separation-of-powers issue Thursday. Chief Justice Eric Brown, appointed to replace the late Thomas Moyer, did not participate in the case.

In the sole dissent, Justice Robert Cupp said lawmakers didn't interfere with court decisions in the Adam Walsh Act, but simply ordered the attorney general to transfer offenders from one classification to another based on a set of fixed criteria.

"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," Cupp wrote.

He said the 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.. JULIE CARR SMYTH