C. Prohibition of Retroactive Statutes. State v. Williams

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1 C. Prohibition of Retroactive Statutes State v. Williams 129 OHIO ST. 3D 344, 2011-OHIO-3374, 952 N.E.2D 1108 DECIDED JULY 13, 2011 I. INTRODUCTION State v. Williams 1 presented the Supreme Court of Ohio with the issue of whether retroactively applied sex offender registration requirements are civil or substantive in nature. 2 The court explored the juxtaposition between the idea that civil, remedial statutes have long been upheld as constitutional when retroactively applied, and the emerging belief that the punitive results of sex offender registration statutes, which have transmogrified 3 statutes with civil aims into substantive ones, are violative of article II, section 28 of the Ohio Constitution. 4 The court first determined that the Ohio General Assembly intended Senate Bill 10 5 ( S.B. 10 ) to be a civil remedial statute. 6 The majority then considered whether the statute remained remedial when applied retroactively to sex offenders, as intended by the Ohio General Assembly. 7 The court determined that the imposition of additional requirements on sex offenders who had been convicted prior to the enactment of S.B. 10 resulted in a punitive application of a remedial law. 8 Such drastic, unintended results rendered S.B. 10 substantively unconstitutional for violating the retroactivity clause of the Ohio Constitution. 9 The court reversed the decision from the court of appeals and remanded the case for sentencing under the sex offender statute Senate Bill 5 10 ( S.B. 5 ), which was in place at the time the offense was committed Ohio St. 3d 344, 2011-Ohio-3374, 952 N.E.2d 1108 (2011). 2. Id. at , 2011-Ohio , 952 N.E.2d at See State v. Ferguson, 120 Ohio St. 3d 7, 14, 2008-Ohio-4824, 32, 896 N.E.2d 110, 117 (2008). 4. See State v. Williams, 129 Ohio St. 3d 344, , 354, 2011-Ohio , 38, 952 N.E.2d 1108, , 1117; OHIO CONST. art. II, 28 ( The general assembly shall have no power to pass retroactive laws. ). 5. S.B. 10, 127th Gen. Assem., Reg. Sess. (Ohio 2008) [hereinafter S.B. 10], available at 6. Williams, 129 Ohio St. 3d at , 2011-Ohio , 952 N.E.2d at See Williams, 129 Ohio St. 3d at 346, 2011-Ohio , 952 N.E.2d at Id. at 349, 2011-Ohio , 952 N.E.2d at Id. at 350, 2011-Ohio , 952 N.E.2d at S.B. 5, 125th Gen. Assem., Reg. Sess. (Ohio 2003), available at

2 1166 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 S.B. 10 has significant constitutional implications, and the Supreme Court of Ohio s rejection of its retroactive application in Williams is a step in the right direction and away from unnecessary adherence to precedent. However, much to the detriment of the legal community, both the majority and dissenting opinions missed the opportunity to support such a significant change in the tides of sex offender legislation with adequate analysis. II. STATEMENT OF FACTS AND PROCEDURAL HISTORY Appellant George Williams was indicted in 2007, for one count of unlawful sexual conduct with a minor in violation of section (A) of the Ohio Revised Code, which states that [n]o person who is eighteen years of age or older shall engage in sexual conduct with another... when the offender knows the other person is thirteen years of age or older but less than sixteen years of age[.] 12 At the time of the offense, Williams was nineteen years old and his victim was a fourteen-year-old girl. 13 After having twice received assurance from the trial court that he would not be required to report or register as a sex offender, Williams pled guilty to the fourth degree felony. 14 Williams made a motion requesting to be sentenced under the sex offender registration statute that was in effect at the time he committed the offense, S.B. 5, and not the newly amended version of the same, S.B Because the State opposed, and because Williams could not provide a legally sufficient explanation as to why he should be sentenced under S.B. 5, the court denied Williams motion and proceeded with sentencing under S.B At sentencing, under S.B. 10, Williams was required to register as a Tier II sex offender despite the court s previous assurances to the contrary. 17 As a Tier II sex offender, Williams would be required to register in person in the county in which he resided, in the county in which he was being educated, and in the county in which he was employed. 18 In addition to analyses125/s0005-ps-125.pdf. 11. See Williams, 129 Ohio St. 3d at 345, 350, 2011-Ohio , 22, 952 N.E.2d at 1110, Id. at 344, 2011-Ohio , 16-22, 952 N.E.2d at 1109; see OHIO REV. CODE ANN (A) (West 2012). 13. State v. Williams, No. CA , 2008-Ohio (Ohio App. 12th Dist. 2008). 14. Williams, 129 Ohio St. 3d at 344, 2011-Ohio , 952 N.E.2d at Id., 2011-Ohio , 952 N.E.2d at Id., 2011-Ohio , 952 N.E.2d at Id. at 345, 2011-Ohio , 952 N.E.2d at Id., 2011-Ohio , 952 N.E.2d at 1109.

3 2012] STATE V. WILLIAMS 1167 this registration, Williams was also required to provide written notice within three days of any change of vehicle information, addresses, Internet identifiers or telephone numbers, and to verify the addresses for a period of 25 years with in person verification every 180 days. 19 Williams subsequently appealed his conviction and sentence, claiming that the conviction and sentence statutes were improperly and retroactively applied in violation of section 28, article II of the Ohio Constitution. 20 The court of appeals affirmed the sentence noting the classification and registration provisions of Senate Bill 10 [did] not violate the Ohio Constitution s ban on retroactive laws. 21 The Supreme Court of Ohio accepted Williams appeal. 22 III. DECISION AND RATIONALE A. Majority Opinion by Justice Pfeifer The opinion of the court, authored by Justice Pfeifer and joined by Chief Justice O Connor and Justices Lundberg Stratton, Lanzinger, and McGee Brown, examined two primary considerations: (1) the constitutionality of S.B. 10 in relation the prohibition against retroactive laws, and (2) a comparison of S.B. 5 and S.B. 10 in relation to remedial versus punitive applications. 23 In a single paragraph discussing the constitutionality of S.B. 10, 24 the court simply concluded that S.B. 10 violates section 28, article II of the Ohio Constitution when the bill is applied to a person whose crime was committed prior to its enactment. 25 The court tested the unconstitutional retroactivity of a statute using a two-part test proffered in Hyle v. Porter, 26 which asks first, whether the General Assembly expressly made the statute retroactive[,] 27 and, second, whether the statutory provisions are substantive or remedial in nature Williams, 129 Ohio St. 3d at 345, 2011-Ohio , 952 N.E.2d at 1109 (quoting see OHIO REV. CODE ANN , , (B)(2), (B)(2) (West 2012)). 20. See id., 2011-Ohio , 952 N.E.2d at Id. at 345, 2011-Ohio , 952 N.E.2d at 1109 (quoting Williams, No. CA , 2008-Ohio-6195, 112). 22. Id. at 345, 2011-Ohio , 952 N.E.2d at 1110 (citing State v. Williams, 121 Ohio St. 3d 1449, 2009-Ohio-1820, 904 N.E.2d 900 (2009)). 23. Id. at , 2011-Ohio , 952 N.E.2d at Williams, 129 Ohio St. 3d at 345, 2011-Ohio , 952 N.E.2d at Id. at , 2011-Ohio , 952 N.E.2d at Ohio St. 3d 165, 2008-Ohio-542, 882 N.E.2d 899 (2008). 27. Williams, 129 Ohio St. 3d at 346, 2011-Ohio , 952 N.E.2d at 1110 (quoting Hyle v. Porter, 117 Ohio St. 3d at 167, 2008-Ohio-542 8, 882 N.E.2d at 901) (citing Van Fossen v. Babcock & Wilcox Co., 36 Ohio St. 3d 100, 522 N.E.2d 489, 1988 Ohio LEXIS 91 (1988) ( The issue of whether a

4 1168 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 The court gave little analysis for the first prong of the two-part Hyle test, but concluded that because section of the Ohio Revised Code 29 imposes registration requirements upon offenders sentenced on or after the January 1, 2008 enactment of S.B. 10, regardless of the date of their offense, the General Assembly intended the statute to apply retroactively. 30 The court quickly transitioned into its analysis of the second prong of the Hyle test and the determination of whether the statutory provisions of S.B. 10 are substantive or remedial. 31 The court made the following distinction between substantive or remedial statutes: a statute is substantive when 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 as new right and is remedial when the statute affects only the remedy provided. 32 Remedial statutes include laws that merely substitute a new or more appropriate remedy for the enforcement of an existing right. 33 Before delving into its comparative analysis of S.B. 5 and S.B. 10, the court recognized State v. Ferguson 34 as long-standing precedent supporting the conclusion that R.C. Chapter 2950 is a remedial statute. 35 The court, however, noted that unlike the two-part Hyle test for unconstitutional retroactivity generally, there is no absolute test to determine whether a retroactive [and remedial] statute is so punitive as to violate the constitutional prohibition against ex post facto laws. 36 Instead, such a distinction is a matter of degree. 37 Before S.B. 5 amended section 2950 of the Ohio Revised Code, the court in State v. Cook 38 concluded that section 2950 of the Ohio Revised Code was solely remedial[,] despite its statute may constitutionally be applied retrospectively does not arise unless there has been a prior determination that the General Assembly specified that the statute so apply. )). 28. Id., 2011-Ohio , 952 N.E.2d at 1110 (citing Hyle, 117 Ohio St. 3d at 167, Ohio-542 8, 882 N.E.2d at 901; see also State v. Consilio, 114 Ohio St. 3d 295, 298, 2007-Ohio , 871 N.E.2d 1167, 1171 (2007)). 29. See OHIO REV. CODE ANN (West 2012). 30. Williams, 129 Ohio St. 3d at 346, 2011-Ohio , 952 N.E.2d at Id., 2011-Ohio , 952 N.E.2d at Id., 2011-Ohio , 952 N.E.2d at (quoting Pratte v. Stewart, 125 Ohio St. 3d 473, 480, 2010-Ohio , 929 N.E.2d 415, 422 (2010)). 33. Id., 2011-Ohio , 952 N.E.2d at (quoting Pratte, 125 Ohio St. 3d at 480, 2010-Ohio , 929 N.E.2d at 422) Ohio St. 3d 7, 2008-Ohio-4824, 896 N.E.2d Williams, 129 Ohio St. 3d at 346, 2011-Ohio , 952 N.E.2d at 1111 (quoting Ferguson, 120 Ohio St. 3d at 13, 2008-Ohio , 896 N.E.2d at 116). 36. Id., 2011-Ohio , 952 N.E.2d at 1111 (quoting State v. Cook, 83 Ohio St. 3d 404, 418, 1998-Ohio-291, 700 N.E.2d 570, 582 (1998)). 37. Id. at 346, 2011-Ohio , 952 N.E.2d at 1111 (quoting Cook, 83 Ohio St. 3d at 418, 1998-Ohio-291, 700 N.E.2d at 582) Ohio St. 3d 404, 1998-Ohio-291, 700 N.E.2d 570.

5 2012] STATE V. WILLIAMS 1169 codification in Ohio s criminal code. 39 S.B. 5 amended section 2950 of the Ohio Revised Code to comply with federal guidelines and the court affirmed its decision that, although failure to comply with the statutorily imposed registration requirements could result in criminal prosecution, the amendments remained purely remedial in nature after the S.B. 5 amendments. 40 Given the substantial changes to the Ohio Revised Code since the opinions in Cook and Ferguson were delivered, the majority shied away from the precedents set in those cases and created a subtle separation from those standards by relying on Justice Lanzinger s dissenting opinion in Ferguson. 41 Using direct quotes for three lengthy consecutive paragraphs, the majority utilized Justice Lanzinger s argument for its own. 42 Justice Lanzinger had criticized the majority s application of the registration process discussed in Cook to the facts in Ferguson, given that the process for registration had substantially been changed by S.B. 5 since the Cook opinion had been delivered. 43 Namely, she took issue with the majority in Ferguson reinforcing the notion that S.B. 5 remained purely remedial, and thus constitutional, despite obvious changes that transformed [section 2950] from remedial to punitive. 44 One of the elements Justice Lanzinger showcased as evidence to support his contrary conclusion included the Cook majority s analogy of sex offender registration to the inconvenience of renewing a driver s license even after S.B. 5 s promulgation. 45 Justice Lanzinger noted that the new requirements have become far more stringent, given that registration must take place with a sheriff and not the Department of Motor Vehicles, registration may potentially be required in three separate locations, and must be renewed every ninety days as opposed to every four years. 46 Justice Lanzinger concluded her dissent in Ferguson by stating: The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment, as the Cook court recognized.... Therefore, I do not believe that we can continue to label these 39. Id. at 423, 1998-Ohio-291, 700 N.E.2d at See Ferguson, 120 Ohio St. 3d at 17, 2008-Ohio , 896 N.E.2d at See Williams, 129 Ohio St. 3d at 347, 2011-Ohio , 952 N.E.2d at (quoting Ferguson, 120 Ohio St. 3d at 17-19, 2008-Ohio , 896 N.E.2d at (Lanzinger, J., dissenting)). 42. See id. at , 2011-Ohio , 952 N.E.2d at See id. at , 2011-Ohio , 952 N.E.2d at Id. at 347, 2011-Ohio , 952 N.E.2d at Id., 2011-Ohio , 952 N.E.2d at (citing Cook, 83 Ohio St. 3d at 418, Ohio-291, 700 N.E.2d at 582). 46. Williams, 129 Ohio St. 3d at 347, 2011-Ohio , 952 N.E.2d at (citing OHIO REV. CODE. ANN (B)(1)(a) (Lexis Nexis 2010)).

6 1170 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 proceedings as civil in nature. These restraints on liberty are the consequences of specific criminal convictions and should be recognized as part of the punishment that is imposed as a result of the offender s actions. 47 The court then applied Justice Lanzinger s dissent to the facts in Williams. 48 The progression from the original codification of section 2950 of the Ohio Revised Code (aligned with Cook), to the S.B. 5 amendments (aligned with Ferguson), and finally the S.B. 10 amendments (aligned with Williams) was shown to have a substantial change in application and requirements imposed on sex offenders who must register. 49 The court succinctly stated, [f]ollowing the enactment of S.B. 10, all doubt has been removed: R.C. Chapter 2950 is punitive. 50 The court then reasoned that under the S.B. 5 amendments, while not perfectly aligned with a remedial goal, S.B. 5 was more remedial because it entitled offenders to a hearing to determine their tier classification. 51 However, under S.B. 10, no such hearing is available. 52 Instead, S.B. 10 automatically delineated under which tier an offender would fall, simply by the nature of the offense without consideration of any other factors. 53 In Williams case, he was automatically placed in Tier II simply based on the nature of his offense and was not permitted to contest or challenge his classification, absent the once-available hearing. 54 The court concluded that, while some of the provisions of section 2950 of the Ohio Revised Code and its amendments remained remedial, it was substantially more punitive. 55 The court purported that if the provision was not remedial, it ventures into the realm of being substantive because it imposes new or additional burdens, duties, obligations or new liabilities [on the offender] not existing at the time [of the offense]. 57 Considering all the changes to section 2950 of the Ohio Revised Code, the court arrived at the final determination that S.B. 10 and the impositions 47. Id. at 348, 2011-Ohio , 952 N.E.2d at 1112 (quoting Ferguson, 120 Ohio St. 3d at 17-19, 2008-Ohio , 896 N.E.2d at (Lanzinger, J., dissenting)). 48. See id. at , 2011-Ohio , 952 N.E.2d at See id., 2011-Ohio , 952 N.E.2d at Id. at 348, 2011-Ohio , 952 N.E.2d at See Williams, 129 Ohio St. 3d at 349, 2011-Ohio , 952 N.E.2d at Id., 2011-Ohio , 952 N.E.2d at See id., 2011-Ohio , 952 N.E.2d at See id. at , 2011-Ohio , 952 N.E.2d at Id. at 349, 2011-Ohio , 952 N.E.2d at Williams, 129 Ohio St. 3d at 349, 2011-Ohio , 952 N.E.2d at 1113 (quoting Pratte, 125 Ohio St. 3d at 480, 2010-Ohio , 929 N.E.2d at 422). 57. Id., 2011-Ohio , 952 N.E.2d at 1113 (quoting Miller v. Hixson, 64 Ohio St. 39, 51, 59 N.E.2d 749 (1901)).

7 2012] STATE V. WILLIAMS 1171 it places on sex offenders who committed their crimes prior to the S.B. 10 amendments are unconstitutional as violative of section 28, article II of the Ohio Constitution s prohibition against the Ohio General Assembly passing retroactive (ex post facto) laws. 58 If the requirements imposed by S.B. 10 were to be applied to Williams, he would suffer substantive new or additional burdens, duties, obligations, or liabilities which offend the Ohio Constitution s prohibition against retroactive laws. 59 Accordingly, the judgment of the lower court was reversed and the case was remanded for resentencing under the S.B. 5 amendment guidelines. 60 B. Dissenting Opinion by Justice O Donnell Justice O Donnell, joined by Justice Cupp, dissented from the court s decision. 61 The dissent, more than twice the length of the majority opinion, gives substantial deference not only to the Ohio General Assembly, but also to Congress. 62 The dissent based its rationale in syllogism: because Congress enacted Megan s Law and the Adam Walsh Child Protection and Safety Act 63 ( Walsh Act ) in accordance with the United States Constitution, and because S.B. 5 and S.B. 10 are modeled after those acts, the Ohio versions should successfully stand up to constitutional scrutiny. 64 Additionally, since the precedents set forth in Cook, Wilson, and Ferguson follow the constitutionally sound guidelines set forth in S.B. 5 and S.B. 10, Justice O Donnell believed that they too should stand up to constitutional scrutiny, and thus, should not be idly cast aside by the majority. 65 The dissent argues that Ohio precedent recognizes the legislature s authority to make policy decisions for reasons of public safety and public welfare. 66 Moreover, the dissent firmly highlights that precedent consistently holds that these statutes are civil regulatory schemes aimed at protecting the public from known sex offenders, and as such, may be retroactively applied. 67 The dissent avows the idea that Congress and the Ohio General 58. Id., 2011-Ohio , 952 N.E.2d at Id. at 350, 2011-Ohio , 952 N.E.2d at 1113 (quoting Pratte, 125 Ohio St. 3d at 480, 2010-Ohio , 929 N.E.2d at 422). 60. See id., 2011-Ohio , 952 N.E.2d at Williams, 129 Ohio St. 3d at 350, 2011-Ohio , 952 N.E.2d at 1114 (O Donnell, J., dissenting). 62. See id. at , 2011-Ohio , 952 N.E.2d at Adam Walsh Child Protection and Safety Act, Pub. L. No , 120 Stat. 587 (2006) [hereinafter Walsh Act ] (codified as amended at 42 U.S.C (2006)). 64. See Williams, 129 Ohio St. 3d at , 2011-Ohio , 952 N.E.2d at 1114 (O Donnell, J., dissenting). 65. See id., 2011-Ohio , 952 N.E.2d at Id. at 350, 2011-Ohio , 952 N.E.2d at See id. at , 2011-Ohio , 952 N.E.2d at 1114.

8 1172 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 Assembly have a substantial interest in protecting the public and that these laws are protective in nature, despite what may seem to be a punitive application, and as such, are constitutional. 68 The dissent favored strict adherence to precedent and explored the language of the federal acts by examining each in support of the determination that each statute is remedial as intended. 1. Megan s Law The promulgation of Megan s Law in 1996 triggered a revision of section 2950 of the Ohio Revised Code and required the Ohio General Assembly to establish a comprehensive system of sex offender classification and registration. 69 Such a system was achieved through placing stringent reporting requirements on convicted sex offenders based on three categorical distinctions each with different requirements. 70 When these requirements went into effect, constitutional challenges to Megan s Law concerning retroactive application occurred more frequently in the Supreme Court of Ohio. 71 The dissent reminded the majority that in each of the previous cases before the court, the statues were analyzed in terms of their nature as punitive or civil. 72 In support of this determination, the dissent proffered several cases to prove that precedent requires an outcome opposite of that reached by the majority. 73 In Cook, the court held Megan s law did not violate the Ohio Constitution s prohibition against retroactive laws because the registration requirements imposed were necessary to achieve the legislature s remedial purpose of protecting the public. 74 The use of past behavior to determine the current classification of those offenders under the new requirements constituted a de minimus procedural requirements which was employed only to make certain the purpose of the act was achieved See id. at , 2011-Ohio , 952 N.E.2d at Williams, 129 Ohio St. 3d at 351, 2011-Ohio , 952 N.E.2d at 1114 (O Donnell, J., dissenting). 70. Id., 2011-Ohio , 952 N.E.2d at (citing see former OHIO REV. CODE ANN (A), (A), (E), 146 Ohio Laws, Part II, at 2609, 2618, ). 71. See id. at 352, 2011-Ohio , 952 N.E.2d at Id., 2011-Ohio , 952 N.E.2d at See id. at , 2011-Ohio , 952 N.E.2d at Williams, 129 Ohio St. 3d at 352, 2011-Ohio , 952 N.E.2d at 1115 (O Donnell, J., dissenting) (citing Cook, 83 Ohio St. 3d at 412, 1998-Ohio-291, 700 N.E.2d at 578). 75. Id., 2011-Ohio , 952 N.E.2d at 1115 (citing Cook, 83 Ohio St. 3d at 412, Ohio-291, 700 N.E.2d at 578).

9 2012] STATE V. WILLIAMS Senate Bill 5: An Amendment to Megan s Law Next, the dissent explored S.B. 5. In 2003, the Ohio General Assembly enacted S.B. 5, which provided that regardless of the date of the sexual offense, sex offenders had a duty to report not only their home addresses but also the addresses of their schools and places of employment. 76 Additionally, adult offenders were no longer entitled to petition the courts to remove their offender status and were required to submit their information for inclusion on a public Internet database to be kept by the attorney general. 77 Still, despite these even more stringent, and arguably intrusive, additional requirements on past offenders, the dissent found that S.B. 5 maintained the civil and regulatory scheme promulgated by Megan s Law. 78 The dissent, like the majority, offered Ferguson in support of its findings, where although S.B. 5 imposed harsh consequences for offenders, the statute had not transmogrified the remedial statute into a punitive one. 79 Strangely, the dissent never applied its references to precedent to the facts of Williams, but rather began a discussion of the Walsh Act and S.B Senate Bill 10 and the Adam Walsh Act In 2006, Congress enacted the Walsh Act, which established the Sex Offender Registration and Notification Act ( SORNA ) with the purpose of protect[ing] the public from sex offenders and child-victim-oriented offenders. 81 Shortly thereafter, the Ohio General Assembly enacted S.B. 10 to satisfy the requirements set forth by SORNA. 82 S.B. 10 substituted the scheme from S.B. 5 with a tier-based system containing automatic classifications based on the convicted offense. 83 The dissent favored [a]dherence to the rule of law established in our prior decisions [which] requires the rejection of these new arguments given that the amendments did not significantly alter[] the regulatory system of sex-offender registration Id. at , 2011-Ohio , 952 N.E.2d at Id. at 354, 2011-Ohio , 952 N.E.2d at Id., 2011-Ohio , 952 N.E.2d at Williams, 129 Ohio St. 3d at 354, 2011-Ohio , 952 N.E.2d at 1117 (O Donnell, J., dissenting) (quoting Ferguson, 120 Ohio St. 3d at 14, 2008-Ohio , 896 N.E.2d at 117). 80. See id. at 355, 2011-Ohio , 952 N.E.2d at Id., 2011-Ohio , 952 N.E.2d at 1117 (citing Walsh Act, supra note 63, 102). 82. Id., 2011-Ohio , 952 N.E.2d at Id., 2011-Ohio , 952 N.E.2d at (citing OHIO REV. CODE ANN (E)-(G), (B), (B) (West 2012)). 84. Williams, 129 Ohio St. 3d at 356, 2011-Ohio , 952 N.E.2d at 1118 (O Donnell, J., dissenting).

10 1174 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 The dissent quoted Ferguson in support: Ohio retroactivity analysis does not prohibit all increased burdens; it prohibits only increased punishment. 85 The dissent relied again on recitation of the intent of the Ohio General Assembly as providing a civil, remedial system designed to protect the safety and general welfare of the people of this state[;] 86 because sex offenders pose a present danger [to the public] not because additional punishment should be inflicted on them. 87 Such present danger requires consideration of the current status of even past offenders because, according to the Ohio General Assembly, prior convictions for sex offenses are indicative of present threats to the public. 88 Lastly, the dissent explored the financial incentives of promulgating S.B Failure to comply with the Walsh Act and its tier scheme would have resulted in loss of federal funding. 90 Financial assistance, according to the dissent, translates to greater efficiency in communicating information about sex offenders, a necessary safeguard for the public against potential danger and furtherance of the Ohio General Assembly s ultimate intent. 91 In conclusion, the dissent simply stated, [b]ecause 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 [of the Ohio Constitution]. 92 The dissent s final assessment reinforced a desire for strict adherence to precedent, closing with the following: 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 Id. at 356, 2011-Ohio , 952 N.E.2d at 1118 (quoting Ferguson, 120 Ohio St. 3d at 16, 2008-Ohio , 896 N.E.2d at 119). 86. Id. at 356, 2011-Ohio , 952 N.E.2d at (quoting OHIO REV. CODE ANN (B) (West 2012)). 87. Id. at 356, 2011-Ohio , 952 N.E.2d at Id. at 357, 2011-Ohio , 952 N.E.2d at Williams, 129 Ohio St. 3d at 357, 2011-Ohio , 952 N.E.2d at 1119 (O Donnell, J., dissenting) (citing 42 U.S.C (2011)). 90. See 42 U.S.C (2011). 91. See Williams, 129 Ohio St. 3d at 357, 2011-Ohio , 952 N.E.2d at 1119 (O Donnell, J., dissenting). 92. Id. at 358, 2011-Ohio , 952 N.E.2d at Id. at 359, 2011-Ohio , 952 N.E.2d at 1121.

11 2012] STATE V. WILLIAMS 1175 IV. ANALYSIS In State v. Williams, the Supreme Court of Ohio abandoned precedents that had been in place for nearly a decade. 94 The now-questioned precedent, which once upheld the constitutional validity of three separate sex offender registration statutes, has been markedly rebuffed by the majority s determination that S.B. 10, when applied to sex offenders who committed their crimes prior to its enactment, is unconstitutionally retroactive in nature. 95 Such retroactive applications rendered the statute in its entirety no longer remedial, but punitive. 96 The development of Ohio s sex-offender registration statutes, and the Supreme Court of Ohio upholding those statutes, would presumably provide ample opportunity for extensive, meaningful constitutional consideration and analysis in order to remedy the glaring quandaries that have presented, and undoubtedly will continue to present themselves, in Ohio courts. While the majority opinion in Williams was the first step in a direction toward addressing such quandaries, in the last decade, both the Ohio General Assembly and the Supreme Court of Ohio have failed to adequately address the ambiguities of the statutes. 97 Instead, each has simply and consistently restated that the statutes are remedial in nature. 98 Such strict adherence to precedent results in the avoidance of any real discussion of the possibility of constitutional violations, solutions thereto, or even a more explicit designation as to why such statutes are remedial at all. Some of this seemingly unnecessary adherence does, however, stand to reasoning when examined in light of the history of sex offender registration statutes in Ohio. The Ohio General Assembly passed S.B. 10 in June of 2007 in order to amend section 2950 of the Ohio Revised Code and bring Ohio sex offender registration laws into compliance with the Walsh Act. 99 The Walsh Act required states to promulgate new (or amend existing) laws in compliance with its provisions within three years of its enactment. 100 If a state were to fail to comply within the time allotted, the state would forfeit 94. See generally Ferguson, 120 Ohio St. 3d 7, 2008-Ohio-4824, 896 N.E.2d 110; Cook, 83 Ohio St. 3d 404, 1998-Ohio-291, 700 N.E.2d Williams, 129 Ohio St. 3d at , 2011-Ohio , 952 N.E.2d at 1113 (majority opinion). 96. Id. at , 2011-Ohio , 952 N.E.2d at It is my contention that of the legislative amendments to S.B. 5 and S.B. 10 none have addressed the ambiguity that exists in applying the statute as remedial versus punitive. Likewise, the Supreme Court of Ohio has failed to provide adequate discussion or guidance regarding such an application beyond simply quoting precedent. 98. See, e.g., Williams, 129 Ohio St. 3d at 347, 2011-Ohio , 952 N.E.2d at S.B. 10, supra note Walsh Act, supra note 63, 102.

12 1176 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 ten percent of the funding allocated for that year and for each of the subsequent years the state remained noncompliant. 101 Beyond the implicit potential for financial detriments through noncompliance, financial incentives were also offered to encourage states to comply promptly. 102 Congress allowed for a ten percent bonus in federal funding for those states that complied within two years of the Act s enactment. 103 While monetary incentives may have proved beneficial for some states, others, like Ohio that may have hastily rushed to comply for fear of losing the bonus, or for fear of penalization likely failed in giving the necessary time and consideration to the legislation. The frequency of sex offender registration-based litigation appearing in the Supreme Court of Ohio supports the argument that the Ohio General Assembly perhaps did not fully consider the constitutional implications of S.B. 10 and the ramifications that have since proved self-evident. 104 The opinions proffered in Williams demonstrate the lack of gusto appearing to be traditionally pervasive in the Ohio Judiciary and Legislature. Making new arguments for or against the provisions of S.B. 10 that demand and desperately need constitutional analysis does not appear to be at the forefront of the court s concern. Instead, and remarkably, the opinions simply regurgitate quotation after quotation of the same precedents to arrive at different conclusions. 105 The legal community and the general public are left sorely for want of a distinguishing analysis. While the dissent may not be relevant for purposes of application of the law, it is nonetheless pertinent for legal argument. Justice O Donnell s dissent is the most apparent example of the factually unsupported adherence to precedent as previously alluded. On several occasions, the dissent referenced precedential cases, complete with quoting, but failed to provide adequate analysis to the meaning that such precedents actually hold when applied to the circumstance in Williams or for any current, similar circumstance for that matter. 106 Justice O Donnell s dissent, and its extreme deference to past cases, is indicative of the kind of behavior that has bred 101. See id See id See id Consider the numerous citations used by both the majority and the dissent and, more importantly, the different conclusions each reached using the same sources as guidance See, e.g., Williams, 129 Ohio St. 3d at , , 2011-Ohio , N.E.2d at , Id. at 358, 2011-Ohio , 952 N.E.2d at 1120 (O Donnell, J., dissenting) ( 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. ).

13 2012] STATE V. WILLIAMS 1177 complacency amidst the constitutional concerns. When the court simply cites to precedent in almost consecutive and contiguous quotations with little to no qualifying analysis as in Williams those who are subject to the laws, and indeed, those who are attempting to decipher the laws, are left with little guidance. Because the judiciary fails to offer assistance, society s only recourse is through suffrage in the legislature. Even then, convicted felons, who are directly affected by the sex offender registration requirements, are left with no recourse because their rights to vote have been statutorily revoked. 107 What is at stake in cases involving sexual offenders can include, for some, a lifetime sentence; while liberty from physical confinement is surely not at stake for most, liberties from social ostracism and even harassment can take place over an offender s lifetime. 108 These requirements and the consequences thereof are particularly misapplied in instances of juvenile offenders charged of nonviolent, statutory sexual crimes. 109 Little evidence is available that proves sex offender classification and registration statutes have actually had any significant effect on reducing the number of offenses against child victims. 110 Instead, these statutes are increasingly criticized for shifting the remedial purpose of protecting the public from a real and present threat, to a purpose purely aimed at punitive measures that misdirect and misappropriate child protective resources in the form of law enforcement manpower, monetary funds, and public awareness by wasting resources on offenders who are not a grave danger to minors. 111 The General Assembly expressed its legislative purpose as establishing a civil, remedial system designed to protect the safety and general welfare of the people 112 and to provide assurance of public protection in light of a determination that [s]ex offenders... pose a risk of engaging in further sexually abusive behavior even after serving a sentence requiring 107. See, e.g., OHIO REV. CODE ANN (West 2012) See generally Steven J. Costigliacci, Protecting Our Children from Sex Offenders: Have We Gone Too Far?, 46 FAM. CT. REV. 180, 181 (2008); see also OHIO REV. CODE ANN (E)-(G), (B), (B) (West 2012) (requiring offenders to register for 15 years, 25 years, and even life) See Elizabeth Garfinkle, Coming of Age in America: The Misapplication of Sex-Offender Registration and Community-Notification Laws to Juveniles, 91 CAL. L. REV. 163, (2003) (arguing that mandatory sex-offender registration for juvenile offenders is contrary to both the aims of the juvenile justice system and Megan s Law) See Margo Pierce, Next Comes Burning at the Stake: Is Ohio Getting Too Tough on Sex Offenders?, CITYBEAT (Aug. 15, 2007), See Costigliacci, supra note 108, at OHIO REV. CODE ANN (B) (West 2012).

14 1178 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 confinement. 113 Under S.B. 10, the tier classification proscribed by the nature of the offender s offense is determinative of the duration and frequency of the sex offender s required registration. 114 Under previous versions of the statute, judges could use discretion when determining a sex offender s classification. 115 S.B. 10, however, completely removed this judicial discretion and, instead, imposed mandatory classifications and reclassifications into one of the three tiers. 116 Thus, the requirements of S.B. 10 take discretion away from the members of the judiciary who are privy to the intimate details of individual cases, while the federal statutes grant authority to the attorney general, a member of the executive branch, who knows neither the circumstances of each case, nor the nature of each offense. 117 Still, each offender is required to comply with his directives all the same with no discernable remedy available to him. While the dissent s adherence to precedent was surely a missed opportunity for legal debate, the majority opinion was no better in this regard. Justice Pfeifer, at one point in his argument, literally adopted a cutand-paste policy for three full paragraphs. 118 While he cites to Justice Lanzinger s dissent in Ferguson, he offered little of his own analysis or application of the facts in Williams. 119 Instead, both opinions seem to ignore the facts of the case, exchanging only stubborn citations to precedent. Both Justices seemed unwilling or unprepared to persuade the other or even the reader with much more than abundant quoting and citations, supporting the final conclusion with, simply: See!? And although the majority s final determination seemed to scream, Reformation! it, too, failed to take advantage of the opportunity to shed light on the ambiguities of remedial and punitive statutes. The conclusions reached in both opinions are all the more suspect after finding that the court had already dealt with some of the issues present in Williams in prior cases. In State v. Bodyke, 120 the court held that provisions of statues that require the attorney general to reclassify sex offenders who 113. OHIO REV. CODE ANN (A)(2) (West 2012) OHIO REV. CODE ANN (B), (B) (West 2012) (Tier I sex offenders must register every year for fifteen years, Tier II offenders must register every 180 days for twenty-five years, and Tier III offenders must register every ninety days for life) See OHIO REV. CODE ANN (West 2006) (repealed 2008) See generally Walsh Act, supra note 63, 117(a)-(b) Walsh Act, supra note 63, 117(a)-(b). On February 28, 2007, the attorney general issued by way of his authority under this section stating, [t]he requirements of the Sex Offender Registration and Notification Act apply to all sex offenders, including sex offenders convicted of the offense... prior to the enactment of that Act. Id See Williams, 129 Ohio St. 3d at , 2011-Ohio , 952 N.E.2d at See id. at , 2011-Ohio , 952 N.E.2d at Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E.2d 753 (2010).

15 2012] STATE V. WILLIAMS 1179 are already classified by judges are violative of the separation of powers doctrine of the United States Constitution because the classification scheme vests the executive branch (attorney general) with the authority to review judicial decisions, and to interfere with the judicial power by requiring the reopening of final judgments. 121 The court dealt with these statutes by finding them severable, and by excising the unconstitutional components found within them. 122 Additionally in State v. Hazlett, 123 the court held that a sex offender who was reclassified by the attorney general as a Tier III offender under S.B. 10, but who s status under S.B. 5 had been determined by operation of law, was entitled to the remedy that completely and totally severed the S.B. 10 provisions giving the attorney general the authority to reclassify sex offenders and to reinstate the sex offender classification as it existed prior to the enactment of S.B In these instances, the court did not detract from the overriding objective of the Ohio General Assembly to protect the public from the threat of sex offender recidivists but rather fashioned an exception in order to adhere to precedent, while also taking into account the changes in social perspective and, more importantly, the changes in the laws. V. CONCLUSION The discussions that took place on either side of the opinion in Williams were merely cursory and leave lower courts, the general public, and the members of the law community in the dark in the face of statutes that leave much to be desired in terms of constitutional clarity and consistency. Though later cases resolve some of the questions left unanswered by Williams, it cannot be ignored that the court missed the opportunity to resolve S.B. 10 s serious constitutional implications through meaningful, detailed discussion and analysis. Whether the court will shed any light on the troublesome requirements and application of S.B. 10 and other sex offender statutes in the future remains to be seen. MARY CATHERINE OLIVER 121. Id. at 266, 2010-Ohio-2424, 933 N.E.2d at Id., 2010-Ohio-2424, 933 N.E.2d at Ohio App. 3d 105, 2010-Ohio-6119, 944 N.E.2d 1220 (10th Dist. 2010) See id. at , 2010-Ohio , 944 N.E.2d at 1223.