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Ohio Supreme Court Rules Sex Offender Residency Restrictions Not Retroactive

by Matt Clarke

The Supreme Court of Ohio held that a state statute restricting sex offenders from residing within 1,000 feet of a school (R.C. 2950.031) did not apply to sex offenders whose home purchase and offense occurred before the statute’s enactment.

Gerry R. Porter was convicted of sexual imposition in 1995 and sexual battery in 1999. He and his wife had bought a house in 1991. In 2003, the General Assembly enacted R.C. 2950.031 (later amended and recodified at 2950.034), stating that no registered sex offender “shall establish or occupy a residential premises within one thousand feet of any school premises.” 150 Ohio Laws, part IV, 6657.

Francis M. Hyle, chief legal officer of Green Township, initiated an action against Porter alleging that portions of Porter’s property were within 1,000 feet of the premises of a school. Hyle sought and was granted a permanent injunction that barred Porter from living in his home. Porter appealed.

The First District Court of Appeals affirmed the lower court, but certified its judgment as being in conflict with Nasal v. Dover, 169 Ohio App.3d 262, 862 N.E.2d 571 (Ohio Ct. App. 2006), as to whether the residency restriction was an unconstitutional ex post facto law if applied to residences established prior to the law’s enactment date.

The Ohio Supreme Court agreed to hear the case and held that a two-part test was used to establish the constitutionality of a retroactively-applied law. “Under this test, we first ask whether the General Assembly expressly made the statute retroactive. If it has, then we determine whether the statutory restriction is substantive or remedial in nature.”

The Court noted that “[t]o overcome the presumption that a statute applies prospectively, a statute must ‘clearly proclaim’ its retroactive application,” not merely infer retroactivity.
The Supreme Court found that the challenged statutory language did not meet the test of clearly proclaiming retroactivity. It rejected the argument that the language stating the statute applied to anyone who “has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to” the covered offenses required retroactive application. It also rejected the argument that the statutory language “shall establish a residence” and “occupy residential premises” should be interpreted as forbidding sex offenders from occupying pre-existing residences.

Thus, the Supreme Court held that the statute did not apply to Porter because he bought his home and committed the sex offenses of which he was convicted prior to the enactment of the residency restrictions. The judgment of the appellate court was reversed on the basis of the law not being retroactive as applied to Porter, and the Court expressly refused to rule on the constitutionality of the statute. See: Hyle v. Porter, 117 Ohio St. 3d 165, 882 N.E.2d 899 (Ohio 2008).

Based upon its ruling in Hyle, the Ohio Supreme Court resolved the certified question regarding the appellate conflict with Nasal, and affirmed the judgment of the Court of Appeals in that case on April 9, 2008. See: Nasal v. Dover, 117 Ohio St. 3d 531 (Ohio 2008).

The Cincinnati Enquirer opined that the General Assembly should not merely amend the law to make it retroactive, but should consider the unfair impact of the residency restrictions on the 550,000 registered sex offenders in the U.S., 1,000 of whom reside in the Cincinnati area. The newspaper suggested that mandatory post-release treatment would be more effective than imposing blanket residency restrictions.

Additional sources:, Cincinnati Enquirer

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Related legal cases

Hyle v. Porter

Nasal v. Dover