Ohio sex offender residency update

A news article last week told about an Ohio sex offender case, now is the Supreme Court, that’s once again challenging the constitutionality of the sex offender statute restricting convicted offenders from living within 1,000 feet of a school in this state—even if that person’s lived there and had committed his/her offense before the residency rule took effect back in 2003.

Actually, there’re been two. With the issue of retroactivity in the Supreme Court, a homeless man, convicted sex offender, likewise filed suit in U.S. District Court seeking a permanent injunction against that statute’s enforcement so as to allow him to live in the city’s drop in center, which happens to be within 1000 feet of a school, at least through the winter. (Article and Complaint)

The case before the Supreme Court is a certified conflict case.

On Oct. 20, 2006, the First District Court of Appeals found that Revised Code §2950.0321 – our residency-restriction statute – could be applied to an offender who had bought his house & committed his offense before the statute’s effective date (Hyle v. Porter). That same day, in the Second District, the appeals court there said the law was unconstitutional because it had a “retroactive application and affects a substantive right” of the individual.
(Nasal v. Dover)

Both courts followed the same lines of reasoning and cited most of the same cases, panamount here being Smith v. Doe, [538 U.S. 84 (2003)], State v. Cook, [83 O.St.3d. 404 (1998)], and Norwood v. Horney, [110 O.St.3d 353 (2006)]. Both courts in fact found that the statute was retroactive, but the Second District held it to “impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, and liabilities as to past transactions,” and therefore unconstitutional. The First District’s standing was that the statute was constitutional because it is “reasonably related to the dangers posed by recidivists in a way that is consistent with the regulatory scheme of protecting the safety & general welfare of Ohio’s citizenry.”

As a note to these case, too, the Ohio Attorney General’s Office in Jan. 2005 opined that “based on the plain language of RC 2950.031, a person who has been convicted of, or has pleaded guilty to, either a sexually oriented offense that is not a registration-exempt sexually oriented offense or a child-victim oriented offense is prohibited from establishing a residence or occupying residential premises in a nursing home, adult care center, residential group home, homeless shelter, hotel, motel, boarding house, or facility operated by an independent housing agency that is located within 1000 feet of any school premise.” The opinion also examines what is meant by “school” property and “residence” as opposed to “domicile.” (OAG 2005-001)