|
|
by Justice Paul E. Pfeifer
In 2003 the Ohio General Assembly, in an effort to create another layer of protection for children, passed a law that imposed residency restrictions on certain sexually oriented offenders. The statute prohibits people who are convicted of particular, specified sex crimes from living within one thousand feet of a school.
After passage of the law, the chief legal officer of Green Township in Hamilton County, Ohio – Francis Hyle – initiated an action against a man named Gerry Porter. In 1995, Porter had been convicted of sexual imposition, and then, in 1999, he was convicted again, this time of sexual battery. After his second conviction the Court of Common Pleas of Hamilton County entered an order determining that Porter was a sexually oriented offender.
Because of that court order, Porter was required to register with local authorities as a sexually oriented offender, which is why Francis Hyle knew that Porter lived in a house that was within 1,000 feet of a school in Hamilton County.
Porter and his wife, Amanda, had co-owned and lived in the house since 1991 – three years before Porter’s first conviction and a dozen years before the residency restriction law was passed. Given the timing of the enactment of the law and Porter’s date of residency the question was: did the residency restriction law apply to Porter?
Mr. Hyle thought so, even though the Ohio Constitution states that the “general assembly shall have no power to pass retroactive laws…” Despite this constitutional provision, Mr. Hyle sought a permanent injunction that would forbid Porter from continuing to occupy his residence.
After reviewing the issue, the trial court granted the injunction, permanently forbidding Porter from living in his house. Later, the court of appeals affirmed the trial court decision, concluding that the residency law could be applied to an offender who bought his home and committed his offense before the effective date of the statute.
After the court of appeals issued its ruling, the case came before us – the Supreme Court of Ohio – for a final review.
If the Ohio Constitution prohibits the General Assembly from passing retroactive laws, how could the trial court and the court of appeals arrive at the conclusion that the residency restriction law applied to Porter, who bought his house and was convicted before the law was passed?
In previous cases that have dealt with similar issues, our court has determined that a retroactive statute is unconstitutional if it retroactively impairs vested substantive rights, but not if it is merely remedial in nature. In conjunction with this, Ohio law says that a “statute is presumed to be prospective in its operation unless expressly made retrospective.”
Thus, when reviewing cases such as this one, we apply a two-part test to determine whether a statute may be applied retroactively. We first ask whether the General Assembly expressly made the statute retroactive. If it did, we then review whether the statutory restriction is substantive or remedial in nature.
Unless we determine, in the first part of the test, that the General Assembly expressly made the statute retroactive, we do not address the question of constitutional retroactivity in the second part of the test.
The exact language of the statute in question states: “No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to either a sexually oriented offense that is not a registration-exempt sexually oriented offense or a child-victim oriented offense shall establish a residence or occupy residential premises within one thousand feet of any school premises.”
Mr. Hyle argued that the use of two contrasting verb tenses – “No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to…” – indicates that the General Assembly intended for the statute to apply to convictions before and after the law was passed.
But as previously noted, Ohio law says that a statute is presumed to be prospective unless expressly made retrospective. To overcome the presumption that a statute applies prospectively it must “clearly proclaim” its retroactive application. Statutory language that merely implies retroactivity is not sufficient to satisfy this standard.
As Chief Justice Thomas Moyer pointed out in writing the majority opinion for this case, “We cannot infer retroactivity from suggestive language.”
And the language of the residency restriction statute is just that – merely suggestive. In our review of the text of the statute, we found that “neither the description of convicted sex offenders nor the description of prohibited acts includes a clear declaration of retroactivity.”
We did acknowledge that the language of the statute in question is ambiguous regarding its prospective or retroactive application, but “we emphasize that ambiguous language is not sufficient to overcome the presumption of prospective application.”
In the past, we have reviewed at least two cases that serve as examples of clear expressions of retroactivity. In both instances the statutes contained strong and unmistakable declarations of retroactivity. 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 – that presumes statutes to be prospective unless expressly made retroactive.
Such express, unambiguous language is missing in the residency restriction statute in question here in this case. Thus, by a six-to-one vote, we reversed the judgment of the court of appeals.
Our conclusion that the residency restriction statute was not expressly made retroactive makes it unnecessary for us to address the second part of the test – the constitutional prohibition against retroactivity.
Therefore, because we determined that the statute was not expressly made retroactive, it does not apply to an offender who – like Gerry Porter – bought his home and committed his offense before the effective date of the statute.
EDITOR'S NOTE: The case referred to is Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542. Case No. 2006-2187. Decided Feb. 20, 2008. Majority opinion written by Chief Justice Thomas J. Moyer.