COLUMBUS, Oh.—Ohio has had a sex offender registration law since 1963, but it wasn't until the 1994 Megan Kanka case, which gave rise to the myriad "Megan's Laws" around the country, and eventually on the federal level as well, that Ohio put teeth into its statute, requiring strict adherence to both registration rules and community notification procedures.
Under Megan's Law, sex offenders in Ohio were classified as either a "sexually oriented offender," a "habitual sex offender" or a "sexual predator," with different reporting and community notification rules for each type.
However, in 2006, with Congress' passage of the Adam Walsh Child Protection and Safety Act, the old offender definitions were discarded in favor of a three-tier system based solely on the type of "sex crime" committed—and states were required to adopt the three-tier system or face losing 10 percent of certain federal crime-control funds. Within a year, the Ohio legislature had amended Ohio Revised Code (R.C.) Title 29, Chapter 2950 to reflect the Adam Walsh classifications.
Trouble was, under the old system, it was trial judges who had the power to determine into which offender classification a particular defendant would be placed, and judges had wide discretion in making the decision. Factors such as the defendant's likelihood of reoffending as well as his/her criminal history and other markers could all be taken into consideration before the label was applied.
But not only did the Adam Walsh Act take away that amount of judicial discretion, but Ohio's Attorney General was charged with reclassifying the offenders from their former definitions to the newer tier system—and it's that "separation of powers" problem that gave rise to the Ohio Supreme Court decision in State v. Bodyke, et al, handed down on Thursday.
As a result of the legislature passing R.C. 2950.031, "The entire reclassification process is administered by the attorney general, with no involvement by any court," wrote Justice Maureen O'Connor for the majority. "There is no individualized assessment. No consideration is given to any of the other factors employed previously in classification hearings held pursuant to Megan's Law. As a result, the trial court is stripped of any power to engage in independent fact-finding to determine an offender's likelihood of recidivism. Expert testimony is no longer presented; the offender's criminal and social history are no longer relevant."
While that state of affairs might present no problems going forward, it was a different story for already-classified offenders like Christian Bodyke, David Schwab and Gerald Phillips, all of whom had been adjudicated before the law's revisions in 2007.
According to the Ohio Supreme Court opinion, in 1999, Bodyke had pled no-contest to one count of breaking and entering and one count of sexual battery, and the judge in the case ruled that Bodyke was therefore to be considered a "sexually oriented offender," the lowest of the three classifications under Ohio law at the time. As a sexually oriented offender, Bodyke was required to register with the sheriff of his county of residence annually for ten years, but the sheriff was not required to notify the surrounding community of Bodyke's presence.
But then Ohio's version of the Adam Walsh Act (AWA) was passed, and the attorney general, acting pursuant to the new regulations, reclassified Bodyke, who still had two years to go as a sex offender under the old regime, as a Tier III offender, deeming his "sexual battery" plea to fall under the Tier III definition, "sexual acts involving force or carried out under threat." The new classification required Bodyke to personally register with the sheriff every ninety days for the rest of his life—and not just the sheriff responsible for the area of Bodyke's residence, but also the sheriffs of the areas where Bodyke might be working or attending school, and any place where Bodyke might be staying for more than three consecutive days. Community notification requirements were similarly increased. Schwab and Phillips faced similar reclassifications, and all three sued to overturn the attorney general's decisions.
"The first, and defining, principle of a free constitutional government is the separation of powers," wrote Justice O'Connor. "We have held that '[t]he administration of justice by the judicial branch of the government cannot be impeded by the other branches of the government in the exercise of their respective powers.'... The judiciary has both the power and the solemn duty to determine the constitutionality and validity of acts by other branches of the government and to ensure that the boundaries between branches remain intact." [Citations omitted here and below]
The majority of the high court saw two problems with the current law: 1) It gave the attorney general the power to review judicial decisions, in violation of the "separation of powers" doctrine and 2) it interfered with the judicial power by requiring the reopening of final judgments which, under both state and federal law, are considered, well, final.
"As the Supreme Court of California recently explained, 'judgments cannot be deprived of their "finality" through statutory conditions not in effect when the judicial branch gave its "last word" in the particular case,' regardless of the policy behind the legislation," 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.'"
"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," the opinion later continues. " In doing so, it violates a second prohibition by assigning to the executive branch the authority to revisit a judicial determination."
Rather than strike down the entire reclassification scheme, however, the Supreme Court ruled that the sections requiring the attorney general to reclassify previously-sentenced offenders was void.
"We therefore hold that R.C. 2950.031 and 2950.032 are severed and, that after severance, they may not be enforced," the high court concluded. "R.C. 2950.031 and 2950.032 may not be applied to offenders previously adjudicated by judges under Megan's Law, and the classifications and community-notification and registration orders imposed previously by judges are reinstated."