[This opinion has been published in Ohio Official Reports at
88 Ohio St.3d 513.]
THE STATE OF OHIO, APPELLANT, v. WILLIAMS, APPELLEE.
THE STATE OF OHIO, APPELLANT, v. WORTHY, APPELLEE.
THE STATE OF OHIO, APPELLEE, v. SUFFECOOL, APPELLANT.
[Cite as State v. Williams, 2000-Ohio-428.]
Criminal procedure—Sex offender registration—R.C. Chapter 2950 does not
violate constitutional rights guaranteed by the Double Jeopardy, Bill of
Attainder, and Equal Protection Clauses of the United States and Ohio
Constitutions—R.C. Chapter 2950 does not violate rights enumerated in
Section 1, Article I of the Ohio Constitution.
(Nos. 99-286, 99-764 and 99-765—Submitted January 12, 2000—Decided April
28, 2000.)
APPEAL from the Court of Appeals for Lake County, No. 97-L-191.
APPEAL from the Court of Appeals for Portage County, No. 97-P-0059.
APPEAL from the Court of Appeals for Stark County, No. 1998-CA-00101.
__________________
I. Case No. 99-286: Appellee Daniel Williams.
{¶ 1} In May 1986, appellee Daniel Williams pleaded guilty to one count
of rape in violation of R.C. 2907.02 and one count of aggravated burglary in
violation of R.C. 2911.11. Williams was then sentenced to an indefinite term of
seven to twenty-five years on each count, to be served concurrently. In March
1997, pursuant to R.C. Chapter 2950, authorities at the London Correctional
Institution recommended a sex offender classification hearing for Williams, and
that he be classified as a “sexual predator,” which would subject Williams to the
registration and notification provisions of R.C. Chapter 2950.
{¶ 2} In April 1997, prior to his sex offender classification hearing and prior
to his release from prison, Williams filed a motion to dismiss, alleging that R.C.
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Chapter 2950 is unconstitutional as applied to him. In its opinion, the trial court
held that R.C. Chapter 2950 violates the Ex Post Facto Clause of the United States
Constitution and the Retroactivity Clause of the Ohio Constitution with regard to
any sexual offender who was sentenced prior to January 1, 1997, the effective date
of R.C. Chapter 2950. The state appealed.
{¶ 3} In September 1998, prior to the decision of the Eleventh District Court
of Appeals, this court issued its opinion in State v. Cook (1998), 83 Ohio St.3d 404,
700 N.E.2d 570, in which we held that R.C. Chapter 2950 is not a violation of either
the Ex Post Facto Clause of the United States Constitution or the Retroactivity
Clause of the Ohio Constitution. The court of appeals affirmed the trial court’s
judgment on the grounds that R.C. Chapter 2950 violates Section 1, Article I of the
Ohio Constitution.
II. Case No. 99-764: Appellee Donald Worthy.
{¶ 4} In March 1995, appellee Donald Worthy pleaded guilty to two counts
of rape in violation of R.C. 2907.02, and one count of gross sexual imposition in
violation of R.C. 2907.05. The counts to which Worthy pleaded guilty involved
child victims who were all under the age of thirteen. Worthy was sentenced to an
indefinite term of ten to twenty-five years on each count of rape, and one year on
the gross sexual imposition count, with all sentences running concurrently.
{¶ 5} In April 1997, the Ohio Department of Rehabilitation and Correction
recommended that Worthy be adjudicated a “sexual predator” pursuant to R.C.
Chapter 2950. Prior to his sex offender classification hearing and his release from
prison, Worthy filed a motion to dismiss the recommendation that he be declared a
“sexual predator.” The trial court granted the motion to dismiss, holding that R.C.
Chapter 2950 violates the Ex Post Facto Clause of the United States Constitution
and the Retroactivity Clause of the Ohio Constitution. The state filed a timely
appeal. The court of appeals, relying on State v. Williams (Jan. 29, 1999), Lake
2
January Term, 2000
App. No. 97-L-191, unreported, 1999 WL 76633, affirmed the judgment of the trial
court.
III. Case No. 99-765: Appellant Paul D. Suffecool.
{¶ 6} In January 1983, appellant Paul D. Suffecool pleaded guilty to one
count of statutory rape in violation of R.C. 2907.02, for raping a child under the
age of thirteen. The trial court sentenced Suffecool to an indeterminate term of
incarceration of seven to twenty-five years. Suffecool also had prior convictions
for the rape of a nineteen-year-old girl, and for the kidnapping of two teenagers.
{¶ 7} In March 1998, prior to Suffecool’s release from prison, a sex
offender classification hearing was conducted pursuant to R.C. Chapter 2950. At
the hearing, the state introduced evidence relating to Suffecool’s convictions, a
psychiatric evaluation, and statements made to police in which Suffecool admitted
to having uncontrollable sexual urges for young girls. Defense counsel introduced
evidence that Suffecool had participated in numerous counseling programs while
in prison. The trial court adjudicated Suffecool as a “sexual predator.”
{¶ 8} Suffecool appealed his sexual predator classification to the Fifth
District Court of Appeals. Suffecool argued that R.C. Chapter 2950, inter alia,
violates the Double Jeopardy Clause of the United States and Ohio Constitutions,
and that R.C. Chapter 2950 is unconstitutionally vague. The court of appeals held
that R.C. Chapter 2950 is constitutional and affirmed the trial court’s decision.
{¶ 9} These cases are now before this court pursuant to the allowance of
discretionary appeals.
__________________
Charles E. Coulson, Lake County Prosecuting Attorney, Vincent A. Culotta
and Julie Mitrovich King, Assistant Prosecuting Attorneys, for appellant in case
No. 99-286.
R. Paul LaPlante, Lake County Public Defender, and Vanessa MacKnight,
Assistant Public Defender, for appellee in case No. 99-286.
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Victor V. Vigluicci, Portage County Prosecuting Attorney, and Kelli K.
Norman, Assistant Prosecuting Attorney, for appellant in case No. 99-764.
Morganstern, MacAdams & DeVito Co., L.P.A., and Michael A. Partlow,
for appellee in case No. 99-764.
Robert D. Horowitz, Stark County Prosecuting Attorney, and Ronald Mark
Caldwell, Chief Appellate Prosecuting Attorney; and Frederic R. Scott, for appellee
in case No. 99-765.
David H. Bodiker, Ohio Public Defender, and Robert L. Lane, Chief
Appellate Public Defender, for appellant in case No. 99-765.
Betty D. Montgomery, Attorney General, Edward B. Foley, pro hac vice,
State Solicitor, David M. Gormley and Stephen P. Carney, Associate Solicitors,
urging reversal for amicus curiae, Attorney General of Ohio in case Nos. 99-286
and 99-764, and urging affirmance in case No. 99-765.
William D. Mason, Cuyahoga County Prosecuting Attorney, and Renee L.
Snow, Assistant Prosecuting Attorney, urging reversal for amicus curiae, Cuyahoga
County Prosecutor’s Office in case No. 99-286.
Dennis Watkins, Trumbull County Prosecuting Attorney, David P. Joyce,
Geauga County Prosecuting Attorney, Thomas L. Sartini, Ashtabula County
Prosecuting Attorney, and Victor V. Vigluicci, Portage County Prosecuting
Attorney, urging reversal for amicus curiae, the Prosecuting Attorneys of the
Eleventh Ohio Appellate District in case No. 99-286.
Michael K. Allen, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, urging reversal for amicus curiae, Ohio
Prosecuting Attorneys’ Association in case Nos. 99-286 and 99-764.
Gray & Duning and Donald E. Oda II, urging affirmance for amicus curiae,
Ohio Association of Criminal Defense Lawyers in case No. 99-286.
__________________
MOYER, C.J.
4
January Term, 2000
{¶ 10} In 1996, in an effort to protect the public, the General Assembly
repealed and reenacted Ohio’s sex offender registration statute. See Am.Sub.H.B.
No. 180, 146 Ohio Laws, Part II, 2560 (“H.B. 180”). The General Assembly
concluded that “[s]exual predators and habitual sex offenders pose a high risk of
engaging in further offenses even after being released from imprisonment.” R.C.
2950.02(A)(2). H.B. 180 created more stringent sex offender classification,
registration, and notification provisions within R.C. Chapter 2950.
{¶ 11} We have previously disposed of two challenges to the
constitutionality of revised R.C. Chapter 2950. In State v. Cook (1998), 83 Ohio
St.3d 404,
700 N.E.2d 570, certiorari denied (1999),
525 U.S. 1182,
119 S.Ct. 1122,
143 L.Ed.2d 116, we held that R.C. 2950.09(B) is not a retroactive law in violation
of Section 28, Article II of the Ohio Constitution, and that R.C. Chapter 2950 is not
an ex post facto law in violation of Section 10, Article I of the United States
Constitution as applied to conduct occurring prior to the effective date of H.B. 180.
{¶ 12} Today we are asked to determine whether R.C. Chapter 2950
violates constitutional rights guaranteed by the Double Jeopardy, Bill of Attainder,
and Equal Protection Clauses of the United States and Ohio Constitutions, and
whether R.C. Chapter 2950 violates rights enumerated in Section 1, Article I of the
Ohio Constitution. For the following reasons, we hold that R.C. Chapter 2950 is
constitutional.
I. History and Overview of Sex Offender Registration Laws.
A. Origins of Current Sex Offender Registration Laws.
{¶ 13} Although sex offender registration statutes have been in effect for
many years, see, e.g., former R.C. Chapter 2950, 130 Ohio Laws 669, it was not
until 1994 that sex offender laws were updated to the form that now exists. On July
29, 1994, a seven-year-old New Jersey girl, Megan Kanka, was raped and murdered
after a convicted sex offender moved into the house across the street from Megan,
and lured her into his house by promising Megan that she could see his new puppy.
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See Weston, Megan’s Law Familiarity Complicates Jury Selection (Jan. 13, 1997),
N.N.J. Record at A4. In response to this horrible crime and what was deemed by
the New Jersey legislature as a legislative emergency, New Jersey enacted
“Megan’s Law,” a sex offender registration statute that includes a public
notification provision. N.J. Stat.Ann. 2C:7-1 et seq.; see, also, Zolper, State Again
Tightens Megan’s Law Notification—Heeds Court Order to Protect Sex Offenders’
Privacy Rights (Mar. 24, 2000), N.N.J. Record at A3.
{¶ 14} After the enactment of Megan’s Law, Congress in 1994 passed the
Jacob Wetterling Crimes Against Children and Sexually Violent Offender
Registration Act, Section 14071, Title 42, U.S.Code (“Jacob Wetterling Act”).
Under the Jacob Wetterling Act, Congress recognized two classes of sex offenders,
“predators” and those convicted of a sexually violent offense or a crime against a
minor. Sections 14071(a)(3)(A) through (C), Title 42, U.S.Code. The Jacob
Wetterling Act also mandates that the states either adopt sex offender registration
laws, or lose funding under the Public Health and Welfare Code. Sections
14071(g)(1) and (2), Title 42, U.S.Code. The Act further authorizes the release of
information collected under state registration programs to law enforcement
agencies where the sex offender resides, and requires immediate transmission of
information to the Federal Bureau of Investigation. Section 14071(b)(2), Title 42,
U.S.Code.
{¶ 15} In its original version, the Jacob Wetterling Act permitted, but did
not require, state agencies to notify appropriate communities about sex offenders.
Former Section 14071(d)(3), Title 42, U.S.Code. In 1996, however, Congress
amended the Act to require community notification when a registered sex offender
moved into the neighborhood. Former Section 14071(d)(2) (now Section
14071[e][2], Title 42, U.S.Code). Since enactment of the Jacob Wetterling Act, all
fifty states have passed some form of sex offender registration law. See People v.
6
January Term, 2000
Ross (1996), 169 Misc.2d 308, 309,
646 N.Y.S.2d 249, 250, fn. 1 (listing sex
offender registration laws enacted in all fifty states).
B. Sex Offender Registration Laws in Other States.
{¶ 16} Although all fifty states have enacted a sex offender registration law,
the laws vary significantly in what sex offenses are covered, registration and
notification procedures, and the process of assessment used to determine sex
offender status. See Note, Who are the People in Your Neighborhood? Due
Process, Public Protection, and Sex Offender Notification Laws (1999), 74
N.Y.U.L.Rev. 1451, 1459-1460. In addition to the common registration and
notification provisions, some states such as California and Texas are considering
more extreme methods of addressing repeat sex offenders. Id. at 1460, fn. 42.
{¶ 17} The major differences among sex offender registration laws are
found in the registration and notification provisions. For instance, the laws differ
with regard to retroactive application. Fifteen states and the District of Columbia
have adopted laws that are fully retroactive, applying to all sex offenders regardless
of the date of their offense. See Note, “Megan’s Laws” Reinforcing Old Patterns
of Anti-Gay Police Harassment (1999), 87 Geo.L.J. 2431, 2467-2473. Twentynine states have partially retroactive laws that, generally, apply to all sex offenders
under some form of criminal supervision on the effective date of the particular
statute. Id. The remaining states apply sex offender registration laws to sex
offenses committed on or after the effective date of their statute. Id.
{¶ 18} The scope of community notification also varies among the states.
Several states have no community notification provisions. Id. Other states will
release information only upon request, when the information concerns high-risk
offenders, or when dissemination of information is necessary for public protection.
Id. In addition, the Internet is being used more frequently for the dissemination of
sex offender data. According to a United States Department of Justice report, over
half of the states have, or are planning to develop, an Internet site for public access
7
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to sex offender registries. See United States Department of Justice, Bureau of
Justice Statistics Fact Sheet, Summary of State Sex Offender Registry
Dissemination Procedures (August 1999), at 1.
C. R.C. Chapter 2950.
{¶ 19} Ohio first enacted a sex offender registration statute in 1963. See
former R.C. Chapter 2950, 130 Ohio Laws 669. In 1996, the General Assembly
revised R.C. Chapter 2950 as part of H.B. 180. The classification provisions in
R.C. 2950.09 became effective on January 1, 1997, and the registration and
notification requirements contained in R.C. 2950.04, 2950.05, 2950.06, 2950.10,
and 2950.11 became effective July 1, 1997. Although we provided a
comprehensive review of R.C. Chapter 2950 in State v. Cook, 83 Ohio St.3d at 406-
409,
700 N.E.2d at 574-576, we find it necessary to discuss the requirements
contained in R.C. Chapter 2950 in the context of the constitutional challenges
presented in these appeals.
{¶ 20} In revising R.C. Chapter 2950, it was the stated intent of the General
Assembly to “protect the safety and general welfare of the people of this state.”
R.C. 2950.02(B). In the opinion of the General Assembly, the classification,
registration, and notification requirements in H.B. 180 are a “means of assuring
public protection.” Id. To support its conclusion that the provisions of H.B. 180
were necessary, the General Assembly advanced several findings.
{¶ 21} The General Assembly found that if the public is provided notice and
information about sexual predators, habitual sex offenders, and other individuals
convicted of sexually oriented offenses as defined in R.C. 2950.01, the citizens can
inform and prepare themselves and their children for the release from confinement
of a sex offender. R.C. 2950.02(A)(1). Dissemination of information is deemed to
be justified because sexual predators and habitual sex offenders pose a high risk of
recidivism, and protection of the public from these types of sex offenders is of
“paramount governmental interest.” R.C. 2950.02(A)(2). The General Assembly
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January Term, 2000
further concluded that a “person who is found to be a sexual predator or a habitual
sex offender has a reduced expectation of privacy because of the public’s interest
in public safety and in the effective operation of government.” R.C. 2950.02(A)(5).
{¶ 22} Revised R.C. Chapter 2950 is separated into three sets of provisions.
The first, which took effect on January 1, 1997, established a new classification
system for convicted sex offenders. Under R.C. 2950.09, a sentencing court must
determine whether a sex offender is a habitual sex offender, a sexual predator, or a
sexually oriented offender.
{¶ 23} As defined, a “habitual sex offender” is a person who has been
“convicted of or pleads guilty to a sexually oriented offense and who previously
has been convicted of or pleaded guilty to one or more sexually oriented offenses.”
R.C. 2950.01(B). A “sexual predator” is “person who has been convicted of or
pleaded guilty to committing a sexually oriented offense and is likely to engage in
the future in one or more sexually oriented offenses.” R.C. 2950.01(E). A sexually
oriented offender is a person who has committed a “sexually oriented offense” as
defined in R.C. 2950.01(D), and does not meet the definition of either a habitual
sex offender or sexual predator.
{¶ 24} There are two ways in which a sex offender may be classified as a
sexual predator. First, if a person is convicted of or has pleaded guilty to a sexually
violent offense on or after January 1, 1997, and also is convicted of or has pleaded
guilty to a sexually violent predator specification alleged in the indictment, count
in the indictment, or information charging the sexually violent offense, the sex
offender is automatically classified as a sexual predator. R.C. 2950.09(A).
Otherwise, the sexual predator classification will attach only after a court holds a
sex offender classification hearing in which the offender is entitled to representation
by counsel, to testify on his/her own behalf, and to call and cross-examine
witnesses. R.C. 2950.09(B)(1) and (C)(2).
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{¶ 25} In determining whether a sex offender is a sexual predator, a judge
shall consider all relevant factors to determine whether the individual is likely to
engage in future sex offenses. See R.C. 2950.09(B)(2). These factors include, but
are not limited to, the offender’s age and prior criminal record, the age of the victim,
whether the sex offense involves multiple victims, whether the offender used drugs
or alcohol to impair the victim of the sex offense, whether the offender completed
a sentence for any conviction, whether the offender participated in any available
program for sex offenders, any mental disease or disability of the offender whether
the offender engaged in a pattern of abuse or displayed cruelty toward the victim,
and any other behavioral characteristics that contribute to the sex offender’s
conduct. R.C. 2950.09(B)(2)(a) through (j).
{¶ 26} The court shall make the determination that a sex offender is a sexual
predator only if its conclusion is supported by clear and convincing evidence. R.C.
2950.09(B)(3). The sex offender and the prosecutor may appeal the court’s
determination of whether the offender is a sexual predator. Id. An offender who
has been adjudicated a sexual predator may also petition the trial court, after the
expiration of an applicable period of time, to obtain an entry indicating that the
offender is no longer a sexual predator. R.C. 2950.09(D). Pursuant to R.C.
2950.09(D), the court shall not enter an order with regard to a petition unless the
court determines by clear and convincing evidence that the offender is no longer
likely to commit further sex offenses.
{¶ 27} The second set of provisions in R.C. Chapter 2950 is the registration
and address verification provisions. The registration provision, R.C. 2950.04,
applies to all three classifications of sex offenders and became effective on July 1,
1997. The registration requirements apply to offenders who are sentenced on or
after the effective date regardless of when the offense occurred, and to habitual sex
offenders required to register immediately prior to the effective date. R.C.
2950.04(A)(1) through (4). Any person required to register must do so with the
10
January Term, 2000
county sheriff within seven days of entering a county in which the offender will be
domiciled or temporarily reside for more than seven days. Id. The offender must
provide a current home address, the name and address of the offender’s employer,
a photograph, and any other information required by the Federal Bureau of
Investigation. R.C. 2950.04(A) and (C). Persons adjudicated as sexual predators
must also provide the license plate number of all motor vehicles either owned by
the offender or registered in the offender’s name. R.C. 2950.04(C)(2).
{¶ 28} Pursuant to R.C. Chapter 2950, sex offenders must also periodically
verify their current home address. Sexually oriented offenders must verify their
address with the sheriff in the county where they reside or are temporarily
domiciled annually for ten years. R.C. 2950.06(B)(2) and 2950.07(B)(3). Habitual
sex offenders must verify their addresses annually for twenty years. R.C.
2950.06(B)(2) and 2950.07(B)(2). Sexual predators must register and verify their
addresses every ninety days for life or until the offender is no longer classified as a
sexual predator. R.C. 2950.06(B)(1) and 2950.07(B)(1). Failure to adhere to the
registration and verification provisions will result in criminal penalties. R.C.
2950.06(G)(1) and 2950.99.
{¶ 29} The last set of provisions in R.C. Chapter 2950 addresses community
notification procedures. The community notification provisions apply to all
individuals who have been adjudicated sexual predators. R.C. 2905.10(A). The
community notification provisions also apply to individuals determined to be
habitual sex offenders upon whom the court has imposed the notification
requirements. R.C. 2950.10(A) and 2950.11(F).
{¶ 30} Once the offender registers, the sheriff must notify certain law
enforcement officials, adjacent neighbors, and other neighbors designated by the
Attorney General, within seventy-two hours of the registration. R.C.
2950.11(D)(1). Executive directors of the public services agency, superintendents
of the board of education, appointing or hiring officers of each chartered non-public
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school, preschool programs, child day-care centers, and institutions of higher
learning within the specified notification area must receive notice from the sheriff
with whom the offender registered within seven days of registration. R.C.
2950.11(D)(2). Additionally, certain victims are to be notified when specified
offenders change their address if the victim makes a request to be notified. R.C.
2950.10(A)(2). The notice shall include the offender’s name, address, the sexually
oriented offense to which the offender pleaded guilty or of which the offender was
convicted, and a statement that the offender has been adjudicated a sexual predator
or a habitual sex offender. R.C. 2950.11(B)(1) through (4).
II. Constitutionality of R.C. Chapter 2950.
{¶ 31} As an initial matter, it must be noted that statutes enacted in Ohio are
presumed to be constitutional. See State ex rel. Jackman v. Cuyahoga Cty. Court
of Common Pleas (1967), 9 Ohio St.2d 159, 161-162,
38 O.O.2d 404, 405-406,
224
N.E.2d 906, 908-909. This presumption of constitutionality remains unless it is
proven beyond a reasonable doubt that the legislation is clearly unconstitutional.
See Roosevelt Properties Co. v. Kinney (1984),
12 Ohio St.3d 7, 13, 12 OBR 6, 11,
465 N.E.2d 421, 427. Therefore, we begin with the presumption that R.C. Chapter
2950 is constitutional.
A. Section 1, Article I of the Ohio Constitution.
{¶ 32} The courts of appeals in Williams and Worthy held that R.C. Chapter
2950 is an unconstitutional law in violation of Section 1, Article I of the Ohio
Constitution. The decisions derive from the conclusion that R.C. Chapter 2950
impinges upon the natural law rights of privacy, favorable reputation, the
acquisition of property, and the ability to pursue an occupation. See, e.g., State v.
Williams (Jan. 29, 1999), Lake App. No. 97-L-191, unreported, 1999 WL 76633.
We first address whether Section 1, Article I of the Ohio Constitution is a self-executing provision that provides such protection, or whether reliance upon this
constitutional provision without other enabling legislation is misplaced.
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January Term, 2000
{¶ 33} Section 1, Article I of the Ohio Constitution provides that “[a]ll men
are, by nature, free and independent, and have certain inalienable rights, among
which are those of enjoying and defending life and liberty, acquiring, possessing
and protecting property, and seeking and obtaining happiness and safety.” The
language of Section 1, Article I is a broad statement limiting the power of our state
government to interfere with certain rights of individuals. The question posited is
whether the words of Section 1, Article I are so broad as to be aspirational ideals
that require enabling legislation to be practically applied, or whether the language
is sufficiently definite to make Section 1, Article I self-executing.
{¶ 34} A constitutional provision is self-executing when it is complete in
itself and becomes operative without the aid of supplemental or enabling
legislation. In re Protest Filed by Citizens for the Merit Selection of Judges, Inc.
(1990), 49 Ohio St.3d 102, 104,
551 N.E.2d 150, 152. Likewise, a constitutional
provision is not self-executing if its language, duly construed, cannot provide for
adequate and meaningful enforcement of its terms without other legislative
enactment. State ex rel. Russell v. Bliss (1951),
156 Ohio St. 147, 151-152,
46 O.O.
3, 5,
101 N.E.2d 289, 291. Stated more succinctly, the words of a constitutional
provision must be sufficiently precise in order to provide clear guidance to courts
with respect to their application if the provision is to be deemed self-executing.
{¶ 35} The constitutions of other states reflect Section 1, Article I of the
Ohio Constitution. We consider the judicial interpretations of those states in the
absence of Ohio precedent. See State ex rel. Durbin v. Smith (1921), 102 Ohio St.
591, 599,
133 N.E. 457, 459.
{¶ 36} The Vermont Constitution provides that “all persons are born
equally free and independent, and have certain natural, inherent, and unalienable
rights, amongst which are the enjoying and defending life and liberty, acquiring,
possessing and protecting property, and pursuing and obtaining happiness and
safety.” Chapter 1, Article I, Vermont Constitution. The Supreme Court of
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Vermont has held that this provision does not create enforceable rights and is not
self-executing, but rather “expresses fundamental, general principles … that
infuse the rights of individuals and powers of government specified elsewhere in
the constitution.” Shields v. Gerhart (1995), 163 Vt. 219, 224,
658 A.2d 924, 928.
The court has never declared an Act of the Vermont legislature unconstitutional
solely because it violated Chapter 1, Article I of the Vermont Constitution. See
Benning v. State (1994),
161 Vt. 472, 476-477,
641 A.2d 757, 759.
{¶ 37} Section 4, Article II of the New Mexico Constitution states that “[a]ll
persons are born equally free, and have certain natural, inherent and inalienable
rights, among which are the rights of enjoying and defending life and liberty, of
acquiring, possessing and protecting property, and of seeking and obtaining safety
and happiness.” The New Mexico courts have held that although its citizens enjoy
rights to life, liberty, property, and happiness, the vague references in Section 4,
Article II are insufficient without enabling legislation to warrant judicial
enforcement. See Blea v. Espanola (App.1994), 117 N.M. 217, 221,
870 P.2d 755,
759, certiorari denied (1994),
117 N.M. 328,
871 P.2d 984.
{¶ 38} In language virtually identical to that of the Ohio Constitution, the
California Constitution provides that “[a]ll people are by nature free and
independent and have inalienable rights. Among these are enjoying and defending
life and liberty, acquiring, possessing, and protecting property, and pursuing and
obtaining safety, happiness, and privacy.” Section 1, Article I, California
Constitution. The California courts have held that these rights are not absolute in
the individual and will yield when the public welfare and common good so demand.
See Natl. Org. for Reform of Marijuana Laws v. Gain (1979), 100 Cal.App.3d 586,
598,
161 Cal.Rptr. 181, 187; Ex Parte Moffett (1937),
19 Cal.App.2d 7, 14,
64 P.2d
1190, 1194.
{¶ 39} In addition to Vermont, New Mexico, and California, numerous
other states with constitutional provisions similar to Section 1, Article I have not
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January Term, 2000
construed their provisions to be a sole basis for challenging legislation.1 The reason
for such a construction is that the language contained in these states’ constitutional
provisions is not sufficiently complete so that courts would have a standard that
could be routinely and uniformly applied. Cf., e.g., Sepe v. Daneker (1949), 76 R.I.
160, 168,
68 A.2d 101, 105. Against this backdrop, we now analyze Section 1,
Article I of the Ohio Constitution to determine whether its language is self-executing.
{¶ 40} Section 1, Article I of the Ohio Constitution describes rights inherent
in the individual to be free and happy—rights that the government is to hold
inalienable. Yet, we have never held rights of property or rights of liberty to be
completely free from government restraint. Accordingly, the “natural law” rights
outlined in Section 1, Article I will, at times, yield to government intrusion when
necessitated by the public good. The issue we must decide is whether this language
gives us a methodology to determine how to accord protection to these rights.
{¶ 41} “Natural law” rights, in and of themselves, are of no legal force.
Rather, it is the laws enacted by legislatures that define the rights of the individual.
As noted by the United States Supreme Court, if “the Legislature of the Union, or
the Legislature of any member of the Union, shall pass a law, within the general
scope of their constitutional power, the Court cannot pronounce it to be void,
merely because it is, in their judgment, contrary to the principles of natural justice.
The ideas of natural justice are regulated by no fixed standard.” Calder v. Bull
(1798), 3 U.S. (3 Dall.) 386, 399,
1 L.Ed. 648, 654 (Iredell, J., concurring). In order
for a court of law to enforce any right, there must be a fixed standard to ensure
equal and uniform application. Id.
1. See, e.g., Sheppard v. Dowling (1900),
127 Ala. 1, 11-12,
28 So. 791, 795; Cogan v. State Dept.
of Revenue (Alaska 1983),
657 P.2d 396, 398; Nelson v. Boundary Cty. (App.1985),
109 Idaho 205,
211,
706 P.2d 94, 100; Atteberry v. State (1968),
84 Nev. 213, 218,
438 P.2d 789, 791; Ferraro v.
Long Branch (1998),
314 N.J.Super. 268, 286,
714 A.2d 945, 954, disposition denied (1998),
157
N.J. 541,
724 A.2d 801; Sepe v. Daneker (1949),
76 R.I. 160, 168,
68 A.2d 101, 105 .
15
SUPREME COURT OF OHIO
{¶ 42} The language in Section 1, Article I of the Ohio Constitution, in
many ways, mirrors the precatory words of the Declaration of Independence (“We
hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are
Life, Liberty and the pursuit of Happiness”) and in the state constitutions previously
mentioned. Similar to the language in the Declaration of Independence and other
state constitutions, the language in Section 1, Article I of the Ohio Constitution is
not an independent source of self-executing protections. Rather, it is a statement
of fundamental ideals upon which a limited government is created. But it requires
other provisions of the Ohio Constitution or legislative definition to give it practical
effect. This is so because its language lacks the completeness required to offer
meaningful guidance for judicial enforcement.
{¶ 43} This lack of completeness can best be demonstrated by comparing
Section 1, Article I to other provisions of the Ohio Constitution. For example,
Section 2, Article I provides that “no special privileges or immunities shall ever be
granted, that may not be altered, revoked, or repealed by the general assembly.”
Likewise, Section 14, Article I states that the “no warrant shall issue, but upon
probable cause, supported by oath or affirmation, particularly describing the place
to be searched and the person and things to be seized.” The shared characteristic
of these two provisions is that they provide express limitations on government (no
special privileges or immunities, no warrants shall issue), accompanied by a
standard through which the courts can enforce the limitation (that may not be
revoked, but upon probable cause). It is the absence of a precise standard subject
to judicial enforcement that precludes Section 1, Article I from being a self-executing provision. See In re Protest, 49 Ohio St.3d at 104,
551 N.E.2d at 152.
{¶ 44} Section 1, Article I declares that all men are “free and independent,”
and that the rights of life, liberty, property, and happiness are inalienable. This
constitutional provision, however, does not indicate how these rights are subject to
16
January Term, 2000
judicial enforcement. All of the aforementioned guarantees are not inalienable in
the most strict sense of the term. It is beyond doubt that the rights of property can
be infringed upon through, for example, the power of eminent domain. See, e.g.,
Section 19, Article I, Ohio Constitution. Both life and liberty are subject to the
criminal laws of this state. Happiness is such a broad concept that no court could
ever adequately protect every individual’s happiness without transgressing the
happiness of another. We find the standards for judicial enforcement of these rights
not in Section 1, Article I, but in other provisions of the Ohio Constitution, laws
passed by the General Assembly, and in the mandates of the United States
Constitution.
{¶ 45} Even if, however, Section 1, Article I was self-executing, the
General Assembly has not violated its declaration. The court of appeals in Williams
held that R.C. Chapter 2950 infringes upon the right of privacy, the right to acquire
property, the right to pursue an occupation, and the right to a favorable reputation.
When we examine the precedent of both this court and the United States Supreme
Court with regard to rights of privacy, we find that the courts of appeals were
incorrect.
{¶ 46} In reviewing legislation that impacts the rights guaranteed by
Section 1, Article I, the legislation will be upheld if it bears a real and substantial
relation to the public health, safety, morals, or general welfare, and if the legislation
is not arbitrary or unreasonable. See Benjamin v. Columbus (1957), 167 Ohio St.
103, 110,
4 O.O.2d 113, 117,
146 N.E.2d 854, 860. Questions of reasonableness
within the meaning of Section 1, Article I “are questions which are committed in
the first instance to the judgment and discretion of the legislative body, and, unless
the decisions of such legislative body on those questions appear to be clearly
erroneous, the courts will not invalidate them.” (Citations omitted.)
Id. The
question we must answer, then, is whether R.C. Chapter 2950, which is an exercise
17
SUPREME COURT OF OHIO
of the police power, is clearly unreasonable legislation that does not promote the
welfare and safety of the people of this state.
{¶ 47} We have suggested the answer to the question in State v. Cook,
where we compared R.C. Chapter 2950 to a Kansas statute that was upheld by the
United States Supreme Court in Kansas v. Hendricks (1997), 521 U.S. 346,
117
S.Ct. 2072,
138 L.Ed.2d 501. The Kansas statute permitted involuntary
commitment of sex offenders. In comparing the two statutes, we held that R.C.
Chapter 2950 is “far less restrictive and burdensome” than the Kansas statute.
Cook,
83 Ohio St.3d at 422,
700 N.E.2d at 585. We also stated that, with regard to
R.C. Chapter 2950, the “General Assembly struck a balance between the privacy
expectations of the offender and the paramount governmental interest in protecting
members of the public from sex offenders.”
Id. at 413,
700 N.E.2d at 579. Taken
in this context, we hold that R.C. Chapter 2950 is reasonable legislation because,
although it impacts the lives of convicted sex offenders, the statute addresses
legitimate governmental interests without a detrimental effect on individual
constitutional rights.
{¶ 48} We have stated that the right to privacy under Section 1, Article I
runs parallel to those rights of privacy guaranteed by the Fourteenth Amendment
to the United States Constitution. Direct Plumbing Supply Co. v. Dayton (1941),
138 Ohio St. 540, 545,
21 O.O. 422, 424,
38 N.E.2d 70, 72. Further, when
evaluating rights under Section 1, Article I, we find useful federal court
interpretations of the Fourteenth Amendment. See State ex rel. Heller v. Miller
(1980),
61 Ohio St.2d 6, 8,
15 O.O.3d 3, 4,
399 N.E.2d 66, 67. After reviewing
both our own precedent and that from the federal courts, we hold that R.C. Chapter
2950 does not violate a convicted sex offender’s right of privacy.
{¶ 49} The right to privacy has been described as “the right to be let alone;
to live one’s life as one chooses, free from assault, intrusion or invasion except as
they can be justified by the clear needs of the community living under a government
18
January Term, 2000
of law.” Time, Inc. v. Hill (1967), 385 U.S. 374, 413,
87 S.Ct. 534, 555,
17 L.Ed.2d
456, 481 (Fortas, J., dissenting); see, also, Housh v. Peth (1956),
165 Ohio St. 35,
39,
59 O.O. 60, 62,
133 N.E.2d 340, 343. As Justice Brandeis observed, the right
to privacy is “the most comprehensive of rights and the right most valued by
civilized men.” Olmstead v. United States (1928),
277 U.S. 438, 478,
48 S.Ct. 564,
572,
72 L.Ed. 944, 956 (Brandeis, J., dissenting). Yet the right to privacy is not
absolute. See State ex rel. Beacon Journal Publishing Co. v. Akron (1994),
70 Ohio
St.3d 605, 608,
640 N.E.2d 164, 167. Privacy of the individual will yield when
required by public necessity. Time, Inc.,
385 U.S. at 413,
87 S.Ct. at 555,
17
L.Ed.2d at 481.
{¶ 50} The courts of appeals held that the notification provisions of R.C.
Chapter 2950 violate a sex offender’s right of privacy. The information
disseminated to the public, however, is a public record, R.C. 2950.11(E), and the
right to privacy encompasses only personal information and not information readily
available to the public. See Russell v. Gregoire (C.A.9, 1997), 124 F.3d 1079,
1094, citing Whalen v. Roe (1977),
429 U.S. 589, 599,
97 S.Ct. 869, 876,
51
L.Ed.2d 64, 73.
{¶ 51} R.C. 2950.11(B) requires that public notice include the sex
offender’s name and address, the sexually oriented offense to which the offender
was convicted or to which the offender pleaded guilty, and a statement that the
offender has been adjudicated a sexual predator, and that, as of the date of the
notice, the court has not entered a determination that the offender is no longer a
sexual predator, or that the offender is a habitual sex offender. An individual’s
conviction has always been considered a public record. Cook, 83 Ohio St.3d at
413,
700 N.E.2d at 579. Further, the convicted sex offender’s classification and
other information are subject to disclosure because they are contained in a record
required by law to be kept by a governmental agency, see State ex rel. Milo’s Beauty
Supply Co. v. State Bd. of Cosmetology (1977),
49 Ohio St.2d 245,
3 O.O.3d 374,
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SUPREME COURT OF OHIO
375, 361 N.E.2d 444, 445, and no evidence has been produced that a convicted sex
offender’s interest in non-disclosure of this information outweighs the
government’s interest in disclosure. Cf. Nixon v. Admr. of Gen. Serv. (1977),
433
U.S. 425, 465,
97 S.Ct. 2777, 2801,
53 L.Ed.2d 867, 905.
{¶ 52} Nor does the fact that the government is required to actively
disseminate information collected from convicted sexual offenders, rather than
merely allowing the public access, impact the right to privacy. Active distribution,
as opposed to keeping open the doors to government information, is a distinction
without significant meaning. The information at issue is a public record, and its
characteristic as such does not change depending upon how the public gains access
to it. We hold, therefore, that R.C. Chapter 2950 does not infringe upon a convicted
sex offender’s right to privacy.
{¶ 53} The courts of appeals also held that R.C. Chapter 2950 infringes
upon the right to acquire or protect property, the right to pursue an occupation, and
the right to a favorable reputation. We respectfully disagree.
{¶ 54} There is nothing in the community notification provisions in R.C.
Chapter 2950 that hampers the right to seek out or acquire property. Notification
is based upon the geographic area around the offender’s residence. R.C.
2950.11(A)(1) through (9). Thus, before the community can be notified, the
offender must have obtained a temporary or permanent residence, and the right to
acquire property has not been implicated.
{¶ 55} Likewise, the right to pursue an occupation has not been violated by
R.C. Chapter 2950. Every individual has the right to pursue a lawful occupation
free from government interference unless the public good so requires. See
Butchers’ Union Slaughter-House & Live-Stock Landing Co. v. Crescent City Live-Stock, Landing & Slaughter-House Co. (1884), 111 U.S. 746, 757,
4 S.Ct. 652, 660,
28 L.Ed. 585, 591. There is no express language in the provisions of R.C. Chapter
2950, however, that prohibits convicted sex offenders from pursuing an occupation.
20
January Term, 2000
The assertion that R.C. Chapter 2950 enables private citizens to bar a convicted sex
offender from obtaining a job, or to prohibit the acquisition of property is, based
upon the record before us, mere speculation. It cannot be presumed that the receipt
of public information will compel private citizens to lawlessness. Further, even if
some private citizens impermissibly interfere with a convicted sex offender’s
rights, the offender may seek redress through this state’s tort and criminal laws.
R.C. Chapter 2950 does not remove an offender’s access to the courts to seek
redress for harms committed by other citizens.
{¶ 56} Likewise, R.C Chapter 2950 does not impair the right to a favorable
reputation. A favorable reputation is not a protected liberty interest. See Paul v.
Davis (1976), 424 U.S. 693, 711-712,
96 S.Ct. 1155, 1165-1166,
47 L.Ed.2d 405,
420; see, also, Cook,
83 Ohio St.3d at 413,
700 N.E.2d at 579. As we stated in
Cook, “ ‘an allegation that government dissemination of information or government
defamation has caused damage to reputation, even with all the attendant emotional
anguish and social stigma, does not in itself state a cause of action for violation of
a constitutional right. … ’ Further, ‘the harsh consequences [of] classification
and community notification … come not as a direct result of the sexual offender
law, but instead as a direct societal consequence of [the offender’s] past actions.’ ”
(Citations omitted.) Cook,
83 Ohio St.3d at 413,
700 N.E.2d at 579. Accordingly,
we hold that R.C. Chapter 2950 does not violate the rights enumerated in Section
1, Article I of the Ohio Constitution.
B. Double Jeopardy Clause of the United States and Ohio Constitutions.
{¶ 57} The defendants argue that R.C. Chapter 2950 violates the Double
Jeopardy Clauses contained in the Fifth Amendment to the United States
Constitution and in Section 10, Article I of the Ohio Constitution. Specifically, the
defendants argue that R.C. Chapter 2950 runs afoul of the Double Jeopardy Clause
because it inflicts a second punishment upon a sex offender for a singular offense.
It is argued that the registration and notification requirements are disproportionate
21
SUPREME COURT OF OHIO
measures imposed after a criminal sentence has been served, and, therefore, a
second punishment is imposed.
{¶ 58} The Double Jeopardy Clause states that no person shall “be subject
for the same offence to be twice put in jeopardy of life or limb.” Fifth Amendment
to the United States Constitution; see, also, Section 10, Article I, Ohio Constitution.
Although the Double Jeopardy Clause was commonly understood to prevent a
second prosecution for the same offense, the United States Supreme Court has
applied the clause to prevent a state from punishing twice, or from attempting a
second time to criminally punish for the same offense. See Kansas v. Hendricks,
521 U.S. at 369,
117 S.Ct. at 2085,
138 L.Ed.2d at 519; Witte v. United States
(1995),
515 U.S. 389, 396,
115 S.Ct. 2199, 2204,
132 L.Ed.2d 351, 361. The
threshold question in a double jeopardy analysis, therefore, is whether the
government’s conduct involves criminal punishment. Hudson v. United States
(1997),
522 U.S. 93, 101,
118 S.Ct. 488, 494,
139 L.Ed.2d 450, 460.
{¶ 59} This court, in Cook, addressed whether R.C. Chapter 2950 is a
“criminal” statute, and whether the registration and notification provisions involved
“punishment.” Because Cook held that R.C. Chapter 2950 is neither “criminal,”
nor a statute that inflicts punishment, R.C. Chapter 2950 does not violate the
Double Jeopardy Clauses of the United States and Ohio Constitutions. We dispose
of the defendants’ argument here with the holding and rationale stated in Cook.
C. Bill of Attainder Clause of the United States Constitution.
{¶ 60} The defendants also argue that R.C. Chapter 2950 is an
unconstitutional bill of attainder in violation of Section 10, Article I of the United
States Constitution.2 The Bill of Attainder Clause is violated, the defendants argue,
2. In their briefs, the defendants argue that R.C. Chapter 2950 violates the Bill of Attainder Clause
in Section 9, Article I of the United States Constitution. Section 9, Article I, however, is only a
limitation on the power of Congress to pass bills of attainder. See Nixon v. Admr. of Gen. Serv.
(1977), 433 U.S. 425, 468,
97 S.Ct. 2777, 2803,
53 L.Ed.2d 867, 907, fn. 30. The states are
22
January Term, 2000
because R.C. Chapter 2950 inflicts punishment without a judicial trial. For reasons
already enumerated, we hold that the Bill of Attainder Clause has not been violated
by R.C. Chapter 2950.
{¶ 61} As defined by the United States Supreme Court, a bill of attainder is
“a law that legislatively determines guilt and inflicts punishment upon an
identifiable individual without provision of the protections of a judicial trial.”
Nixon, 433 U.S. at 468,
97 S.Ct. at 2803,
53 L.Ed.2d at 907, citing United States v.
Brown (1965),
381 U.S. 437, 445, 447,
85 S.Ct. 1707, 1713-1714,
14 L.Ed.2d 484,
491; see, also, State ex rel. Matz v. Brown (1988),
37 Ohio St.3d 279, 280,
525
N.E.2d 805, 806. Thus, a bill of attainder is a law that (1) inflicts punishment, (2)
without a judicial trial, (3) upon an identifiable individual. See Nixon,
433 U.S. at
468,
97 S.Ct. at 2803,
53 L.Ed.2d at 907. R.C. Chapter 2950 fails to meet all three
elements and is not, therefore, a bill of attainder.
{¶ 62} As previously discussed, R.C. Chapter 2950 does not inflict
punishment. Cook, 83 Ohio St.3d at 417,
700 N.E.2d at 581. Also, before a sex
offender is classified as either a sexual predator or a habitual sex offender, a judicial
hearing is conducted either at the time of trial for the underlying sex offense, or at
a separate sex offender classification hearing. See R.C. 2950.09(A) and
2950.09(B)(1). Accordingly, there is no legislative infliction of punishment
without a judicial trial.
{¶ 63} Nor does R.C. Chapter 2950 apply to an identifiable individual. In
discussing this element, the United States Supreme Court stated that “arguing that
an individual or defined group is attainted whenever he or it is compelled to bear
burdens which the individual or group dislikes … removes the anchor that ties
the bill of attainder guarantee to realistic conceptions of classification and
punishment. [This] view would cripple the very process of legislating, for any
prohibited from passing bills of attainder by Section 10, Article I of the United States Constitution.
Id.
23
SUPREME COURT OF OHIO
individual or group that is made subject to adverse legislation can complain that the
lawmakers could and should have defined the relevant affected class at a greater
level of generality.” (Citations omitted.) Nixon, 433 U.S. at 470,
97 S.Ct. at 2804,
53 L.Ed.2d at 908. Moreover, even if a legislative Act specifically refers to a
specific individual or group, the Bill of Attainder Clause is not automatically
implicated.
Id. at 472, 97 S.Ct. at 2805,
53 L.Ed.2d at 909. A further inquiry is
necessary to determine if punishment has been inflicted.
Id.
{¶ 64} The fact that R.C. Chapter 2950 applies only to convicted sex
offenders does not render the statute sufficiently specific within the meaning of the
Bill of Attainder Clause. R.C. Chapter 2950 applies to a far broader class of
individuals than the legislation at issue in Nixon. Even if, however, we believed
the specificity element to be satisfied, R.C. Chapter 2950 does not inflict
punishment without a judicial trial. Thus, the statute cannot be found to violate the
Bill of Attainder Clause of Section 10, Article I of the United States Constitution.
See Id.
D. Equal Protection Clauses of the United States and Ohio Constitutions.
{¶ 65} The defendants further contend that R.C. Chapter 2950 violates their
right to equal protection of the laws as guaranteed by the Fourteenth Amendment
to the United States Constitution. The defendants argue that there is no rational
basis in distinguishing between current sex offenders and sex offenders who were
not incarcerated as of the effective date of the statute. It is also argued that
application of the “clear and convincing” standard to pre-H.B. 180 offenders and
not future offenders involves both a suspect class and fundamental rights. We find
these arguments to be unpersuasive.
{¶ 66} The Fourteenth Amendment to the United States Constitution
provides that “[n]o State shall … deny to any person within its jurisdiction the
equal protection of the laws.” The Equal Protection Clause prevents states from
treating people differently under its laws on an arbitrary basis. Harper v. Virginia
24
January Term, 2000
State Bd. of Elections (1966), 383 U.S. 663, 681,
86 S.Ct. 1079, 1089,
16 L.Ed.2d
169, 181 (Harlan, J., dissenting). “Whether any such differing treatment is to be
deemed arbitrary depends on whether or not it reflects an appropriate differentiating
classification among those affected; the clause has never been thought to require
equal treatment of all persons despite differing circumstances.”
Id.
{¶ 67} Under the Equal Protection Clause, a legislative distinction need
only be created in such a manner as to bear a rational relationship to a legitimate
state interest. Clements v. Fashing (1982), 457 U.S. 957, 963,
102 S.Ct. 2836,
2843,
73 L.Ed.2d 508, 515. These distinctions are invalidated only where “they are
based solely on reasons totally unrelated to the pursuit of the State’s goals and only
if no grounds can be conceived to justify them.” Id.; see, also, Heller v. Doe (1993),
509 U.S. 312, 320,
113 S.Ct. 2637, 2642,
125 L.Ed.2d 257, 271; Am. Assn. of Univ.
Professors, Cent. State Univ. v. Cent. State Univ. (1999),
87 Ohio St.3d 55, 58,
717
N.E.2d 286, 290. This rational basis analysis is discarded for a higher level of
scrutiny only where the challenged statute involves a suspect class or a fundamental
constitutional right. Clements,
457 U.S. at 963,
102 S.Ct. at 2843,
73 L.Ed.2d at
515-516; see, also, Cleburne v. Cleburne Living Ctr. (1985),
473 U.S. 432, 440,
105 S.Ct. 3249, 3254,
87 L.Ed.2d 313, 320. We must first determine whether the
provisions of R.C. Chapter 2950 deserve a higher level of scrutiny than that
provided by a rational basis review.
{¶ 68} “[A] suspect class is one ‘saddled with such disabilities, or subjected
to such a history of purposeful unequal treatment, or relegated to such a position of
political powerlessness as to command extraordinary protection from the
majoritarian political process.’ ” Massachusetts Bd. of Retirement v. Murgia
(1976), 427 U.S. 307, 313,
96 S.Ct. 2562, 2567,
49 L.Ed.2d 520, 525, quoting San
Antonio Indep. School Dist. v. Rodriguez (1973),
411 U.S. 1, 28,
93 S.Ct. 1278,
1294,
36 L.Ed.2d 16, 40. Moreover, the only classifications recognized as
“suspect” are those involving race, alienage, and ancestry. Id. at 312, 96 S.Ct. at
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2566, 49 L.Ed.2d at 524, fn. 4. Sex offenders, therefore, are not a suspect class.
See Cutshall v. Sundquist (C.A.6, 1999),
193 F.3d 466, 482; Artway v. Atty. Gen.
of New Jersey (C.A.3, 1996),
81 F.3d 1235, 1267.
{¶ 69} Nor does R.C. Chapter 2950 implicate a fundamental constitutional
right. Recognized fundamental rights include the right to vote, the right of interstate
travel, rights guaranteed by the First Amendment to the United States Constitution,
the right to procreate, and other rights of a uniquely personal nature. Murgia, 427
U.S. at 312,
96 S.Ct. at 2566,
49 L.Ed.2d at 524, fn. 3; see, also, Albright v. Oliver
(1994),
510 U.S. 266, 272,
114 S.Ct. 807, 812,
127 L.Ed.2d 114, 122. As discussed
in Part II(A), supra, there is nothing in R.C. Chapter 2950 that infringes upon any
fundamental right of privacy or any other fundamental constitutional right that has
been recognized by the United States Supreme Court. Because neither a suspect
class nor a fundamental constitutional right is implicated by the provisions of R.C.
Chapter 2950, a rational basis analysis is appropriate. See Clements,
457 U.S. at
963,
102 S.Ct. at 2843,
73 L.Ed.2d at 515.
{¶ 70} Under the rational basis standard, we are to grant substantial
deference to the predictive judgment of the General Assembly. See Turner
Broadcasting Sys. v. Fed. Communications Comm. (1997), 520 U.S. 180, 195,
117
S.Ct. 1174, 1189,
137 L.Ed.2d 369, 391. The state does not bear the burden of
proving that some rational basis justifies the challenged legislation; rather, the
challenger must negative every conceivable basis before an equal protection
challenge will be upheld. See Heller,
509 U.S. at 320,
113 S.Ct. at 2642,
125
L.Ed.2d at 271.
{¶ 71} The defendants argue that R.C. Chapter 2950 denies equal protection
of the laws because the statute applies to those sex offenders who are currently
imprisoned, and not to those sex offenders who were released from prison prior to
the statute’s enactment date. The General Assembly could have rationally
concluded, for example, that the burdens associated with locating sex offenders
26
January Term, 2000
would have created an administrative and fiscal challenge that would have rendered
the statute practically inoperative. See State v. Ward (1999), 130 Ohio App.3d 551,
566,
720 N.E.2d 603, 614. Regardless of the potential reasons for the enactment of
the statute, however, the defendants have failed to present any arguments that
negate the reasons that produced R.C. Chapter 2950. Accordingly, an equal
protection challenge cannot be upheld. Heller,
509 U.S. at 320,
113 S.Ct. at 2642,
125 L.Ed.2d at 271.
{¶ 72} It is also asserted that the use of the “clear and convincing” standard
denies equal protection of the laws. This is so, the defendants argue, because sex
offenders who are charged in an indictment as a sexually violent predator are
entitled to have a jury determine the specification by proof beyond a reasonable
doubt.
{¶ 73} As aptly noted by the Eighth District Court of Appeals, this argument
“misstates R.C. Chapter 2950 because there is no ‘sexual predator specification’
contained in that chapter. There is a ‘sexually violent predator specification’
contained in R.C. 2971.01(I) that applies to those who have been convicted of a
sexually violent offense … and who are likely to commit another violent offense
in the future.” (Citations omitted.) Ward, 130 Ohio App.3d at 567,
720 N.E.2d at
614. “Unlike the remedial aspects of a sexual predator determination, the
provisions of the sexually violent predator specification are penalty provisions
which enhance the offender’s sentence.”
Id.
{¶ 74} “Because there are punitive aspects of the sexually violent predator
specification, the law requires that, like any other specification, those aspects be
determined by proof beyond a reasonable doubt. This is in direct contrast to the
nonpunitive notice and registration requirements [of R.C. Chapter 2950].” Id.
Since there are two separate classes of individuals under R.C. Chapter 2950 and
R.C. 2971.01(I)—one class subject to civil law and the other subject to criminal—
a rational basis exists to apply two different standards of review. Accordingly, the
27
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defendant’s equal protection argument must fail. See, e.g., Clements, 457 U.S. at
963,
102 S.Ct. at 2843,
73 L.Ed.2d at 515.
E. Void for Vagueness.
{¶ 75} The defendants urge us to hold that R.C. Chapter 2950 is void for
vagueness because the statute requires courts to find that a sex offender is likely to
commit future offenses under a clear and convincing standard. The defendants
further argue that the statute is unconstitutionally vague because the statute does
not provide adequate guidance regarding the application of the factors in R.C.
2950.09(B)(2).
{¶ 76} The void-for-vagueness doctrine ensures that individuals can
ascertain what the law requires of them. See State v. Anderson (1991), 57 Ohio
St.3d 168, 171,
566 N.E.2d 1224, 1226-1227. In order to survive a void-for-vagueness challenge, the statute at issue must be written so that a person of common
intelligence is able to determine what conduct is prohibited, and the statute must
provide sufficient standards to prevent arbitrary and discriminatory enforcement.
Chicago v. Morales (1999),
527 U.S. 41, 56-57,
119 S.Ct. 1849, 1859,
144 L.Ed.2d
67, 80; see, also, State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals
(1992),
63 Ohio St.3d 354, 358,
588 N.E.2d 116, 120. A statute will not be declared
void, however, merely because it could have been worded more precisely. See Roth
v. United States (1957),
354 U.S. 476, 491,
77 S.Ct. 1304, 1312,
1 L.Ed.2d 1498,
1510-1511. Mathematical precision has never been required. See Boyce Motor
Lines v. United States (1952),
342 U.S. 337, 340,
72 S.Ct. 329, 330-331,
96 L.Ed.
367, 371.
{¶ 77} As an initial matter, it should be noted that the defendants are raising
facial-vagueness challenges to R.C. Chapter 2950. Facial-vagueness challenges are
generally allowed only where the statute is vague in all of its applications.
Anderson, 57 Ohio St.3d at 173,
566 N.E.2d at 1228, fn. 2, citing Village of
Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982),
455 U.S. 489, 494-
28
January Term, 2000
495, 102 S.Ct. 1186, 1191,
71 L.Ed.2d 362. This means that the statute does not
supply a definitive standard by which to determine what conduct is included and
what conduct is excluded. As will be discussed, R.C. Chapter 2950 does provide
an adequate standard upon which to make a sexual predator determination.
Accordingly, it is not impermissibly vague in all its applications, and a facial
challenge will not be sustained. Further, of the three defendants in these
consolidated cases, only Suffecool could potentially raise an as-applied challenge
to the statute. The trial courts in both the Williams and Worthy cases declared R.C.
Chapter 2950 unconstitutional prior to any sexual predator classification hearing.
Williams and Worthy, therefore, cannot complain of the vagueness of the law as
applied to others. Cf. Village of Hoffman Estates,
455 U.S. at 494-495, 102 S.Ct.
at 1191,
71 L.Ed.2d at 369.
{¶ 78} As stated, a law will survive a void-for-vagueness challenge if it is
written so that a person of common intelligence is able to ascertain what conduct is
prohibited, and if the law provides sufficient standards to prevent arbitrary and
discriminatory enforcement. Morales, 527 U.S. at 56-57,
119 S.Ct. at 1859,
144
L.Ed.2d at 80. First, R.C. Chapter 2950 does not prohibit any conduct. Its
provisions merely establish remedial registration and notification requirements for
those sex offenders adjudicated to be a habitual sex offender or a sexual predator.
As noted by this court, remedial measures require less specificity to satisfy a void-for-vagueness challenge than do criminal statutes. Salem v. Ohio Liquor Control
Comm. (1973),
34 Ohio St.2d 244, 246,
63 O.O.2d 387, 388-389,
298 N.E.2d 138,
140. Second, R.C. Chapter 2950, on its face, does set forth sufficiently specific
guidelines to prevent arbitrary and discriminatory enforcement.
{¶ 79} The defendants argue that use of the “clear and convincing” standard
to make a finding that a sex offender is likely to commit future offenses is illogically
vague. We fail to understand, however, how the likelihood of future conduct and
the burden of proof required to make that finding conflict in such a manner as to
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render the statute vague. “This assessment of probability is both conceptually and
practically distinct from the burden of proof. A ‘burden of proof’ is the duty
imposed … on the party who is legally required to persuade a trier of fact that
the party is entitled to some form of legal redress. In this case, the clear-andconvincing-evidence standard require[s] the state to present evidence that would
give the court a firm belief or conviction that [a] defendant [is] likely to commit
another sexually oriented offense in the future.” Ward, 130 Ohio App.3d at 569,
720 N.E.2d at 616. Therefore, we find nothing impermissibly vague about the use
of the clear and convincing standard in R.C. Chapter 2950.
{¶ 80} In addition, R.C. Chapter 2950 provides guidelines for a court to
make a sexual predator determination. R.C. 2950.01(E) defines a “sexual predator”
as “a person who has been convicted of or pleaded guilty to committing a sexually
oriented offense and is likely to engage in the future in one or more sexually
oriented offenses.” The court is to make this determination upon the state’s
presentation of clear and convincing evidence. R.C. 2950.09(B)(3) and
2950.09(C)(2). R.C. 2950.09(B)(2) further provides factors that the court is
required to consider in making a determination as to the sex offender’s probability
of future conduct.
{¶ 81} R.C. Chapter 2950 is far different, for example, than the statute
declared void in Morales. In Morales, the United States Supreme Court declared
an ordinance that gave police discretion to disperse groups of people if they are in
a place without an apparent purpose, without defining what is an “apparent
purpose,” to be unconstitutionally vague. 527 U.S. at 56-57,
119 S.Ct. at 1859,
144
L.Ed.2d at 80. Here, R.C. Chapter 2950 provides factors to help define when an
offender is “likely to engage in the future in one or more sexually oriented
offenses,” R.C. 2950.01(E), and is more specific than the Morales ordinance.
{¶ 82} Even if the terms of R.C. 2950.09 are worded broadly, a certain level
of broadness in the language of R.C. Chapter 2950 allows for individualized
30
January Term, 2000
assessment rather than an across-the-board rule. “Because each sexual-predator
determination is fact-specific, the framework provided to the courts in the statute
must be broadly worded to accommodate both the most common and most
exceptional cases.” State v. Avery (1998), 126 Ohio App.3d 36, 54,
709 N.E.2d
875, 887. By writing the statutory language to accommodate for individualized
assessments, the General Assembly has not rendered R.C. Chapter 2950
unconstitutionally vague. Any abuses in the sex offender classification hearing or
any misapplication of the factors in R.C. 2950.09(B)(2) to a particular individual
can be cured through the appellate process. See R.C. 2950.09(B)(3). We will not
rule out the possibility that R.C. Chapter 2950 may be misapplied on an individual
basis, but the statute is facially constitutional.
III. Conclusion.
{¶ 83} For the foregoing reasons, we hold that R.C. Chapter 2950 is
constitutional on the grounds raised in these appeals. We, therefore, reverse the
judgments of the courts of appeals in case Nos. 99-286 and 99-764, and remand the
causes to the trial courts for hearings consistent with the provisions of R.C. Chapter
2950. We also affirm the judgment of the court of appeals in case No. 99-765.
Judgments reversed and
causes remanded
in case Nos. 99-286 and 99-
764.
Judgment affirmed
in case No. 99-765.
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
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