June 12, 2013
Sex Offender Classification

by Justice Paul E. Pfeifer

On September 1, 2007, a young person we’ll refer to as Bruce S. committed an act that – had it been committed by an adult – would have constituted rape. Just over a year later, on November 25, 2008, he was adjudicated delinquent – which, in the language of juvenile court, essentially means he was found guilty of the offense.

The juvenile court had to classify Bruce as either a Tier I, Tier II or, the most serious, a Tier III sex offender. Each classification carries different requirements of registration and community-notification provisions. The juvenile court applied the standards established in Senate Bill 10 (“S.B. 10”) to classify Bruce as a Tier III sex offender.

Prior to the passage of S.B. 10, the law that controlled such situations was known as “Megan’s Law,” named for the little New Jersey girl who was sexually assaulted and murdered by a sex offender who had moved into her neighborhood. Megan’s Law established registration and notification requirements for sex offenders, but S.B. 10 was based on the federal Adam Walsh Act (Walsh was abducted from a Florida shopping mall, sexually assaulted and murdered). Under Megan’s Law, the sex-offender registration requirements were less severe than the ones required by S.B. 10.

Bruce appealed his classification, and the First District Court of Appeals reversed the juvenile court’s ruling. The court of appeals concluded that the juvenile court had committed reversible error by failing to use its discretion to classify Bruce as a Tier I, Tier II, or Tier III sex offender.

The court of appeals sent the case back to the juvenile court to conduct a new classification hearing, but the results were the same – the juvenile court once again classified Bruce as a Tier III sex offender.

Bruce appealed once again, asserting that he should not be classified as a Tier III sex offender under the provisions of S.B. 10 because he committed his offense before the effective date of that law. The First District Court of Appeals agreed that the juvenile court had erred in applying S.B. 10 to Bruce and reversed the classification.

But in making that decision, the First District noted that it was in conflict with the analysis of the Eighth District Court of Appeals in a similar case. When such disagreements between appellate courts occur, the issue comes before us – the Supreme Court of Ohio – to resolve the conflict.

So the question before us was whether the provisions of S.B. 10 could be constitutionally applied to a sex offender who had committed his sex offense between the July 1, 2007, repeal of Megan’s Law and the January 1, 2008, effective date of S.B. 10.

In a case from 2011, our court held that S.B. 10, as applied to sex offenders who committed their offenses prior to the law’s enactment, violates the Ohio Constitution, which prohibits the legislature from passing retroactive laws.

But that case did not address the issue of whether an individual who committed a sex offense after S.B. 10’s “enactment” date of June 27, 2007, but before the date on which S.B. 10’s classification provisions became effective – on January 1, 2008 – is subject to S.B. 10’s provisions, or whether he is subject to the provisions of Megan’s Law.

We were presented with two reasonable answers to that question. The First District Court of Appeals held that the critical date was January 1, 2008. The Eighth District, on the other hand, held that S.B. 10’s enactment date of June 27, 2007, should be the date. By a seven-to-zero vote, we adopted the reasoning of the First District Court of Appeals.

In reaching its decision on this matter, the First District Court of Appeals applied the common-sense reasoning from a case that our court had decided in 1981. That 1981 case adopted a rule which stated that when the legislature amends a law, and repeals the existing law in the process – as the legislature did when it passed S.B. 10 and repealed Megan’s law – the amended law must be construed to take effect upon the actual, effective date of the new law.

That 1981 case reflects the principles that should be applied in all cases in which the legislature amends a law and then repeals the pre-amendment version of the law. But in its arguments before us, the state – which sought to apply S.B. 10’s stricter provisions to Bruce – ignored the principles that were established in that 1981 case.

The state argued that S.B. 10 was an “emergency” law that necessarily became effective immediately upon passage. But while the state argued that S.B. 10 became effective immediately upon the governor’s signature, it also concluded that the “enormity of this legislation required a period of transition” to the new law.

Our court thought that S.B. 10 presented exactly the situation that the 1981 case was designed to control: to prevent a hiatus during the period in which the legislature amends a law but directs that the amendments take place in the future, and orders the repeal of the pre-amendment version of the law after amendment.

We also presumed that if the legislature disagreed with the rule set forth in the 1981 case, it would have responded to it at some point in the past 30 years. But it has not done so.

We thus adopted the First District Court of Appeals’ analysis and judgment and held that S.B. 10’s classification, registration, and community-notification provision cannot be constitutionally applied to a sex offender who committed his sex offense between July 1, 2007, and December 31, 2007, the last day before the effective date of S.B. 10’s provisions.

EDITOR'S NOTE: The case referred to is In Re Bruce S., 134 Ohio St.3d 477, 2012-Ohio-5696. Case No. 2012-0059. Decided December 6, 2012. Majority opinion written by Chief Justice Maureen O'Connor.