Ohio Supreme Court Strikes Down Their Adam Walsh Act

Yesterday, a highly talented group of lawyers managed to get the Ohio Supreme Court to declare its Adam Walsh Act unconstitutional. State v Williams, 2011 Ohio 3374. This group includes some unlikely friends. Several rape crisis centers filed a Friend of the Court brief supporting the Defendant. Both the Cleveland Rape Crisis Center and the Texas Association Against Sexual Assault filed a brief supporting the Defendant. They noted that the Adam Walsh Law was a law spread by fear and did not help any valid public purpose. Their brief is a wealth of information about why these laws don’t work and people need to read it. Less surprisingly, the Ohio ACLU Fund filed a friend of the court brief arguing the matter under ex post facto principles.

While I have focused on the amicus, the
Office of the Ohio Public Defender also filed an excellent brief arguing why an offense driven classification scheme is punitive. The OOPD argued that the more rigid the classification system is, the more punitive it is. The Williams Court agreed. While Ohio Courts have upheld predecessor laws, the Court found that the new law passed the boundaries in becoming punitive.

The Court, however, based its decision on a provision contained in the Ohio Constitution (Ohio Const Art II, Sec. 28) which bars the passage of retroactive laws.

That provision provides:

“The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state.”

The Court noted that the new law extended the duration of registration obligations, imposed a duty on an individual to register with multiple law enforcement agencies, and removed the ability to judicially challenge registration obligations. Because the Ohio Supreme Court based the ruling on the Ohio Constitution, there should be no further appeals in this matter.

After reading the ruling, I pulled down a copy of Michigan Compiled Laws and started thumbing through Section IV of the Michigan Constitution trying to find a similar provision. Section IV is our counterpart of Ohio Constitution Article II – it deals with limitations on legislative powers. I couldn’t find anything. I also couldn’t find anything in Michigan Constitution’s Article III dealing with the general operations of government. Section I of our Constitution contains a general ex post facto (“No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted”) which might provide the basis for a similar challenge.

The ex post facto limitation has been applied fairly similarly in Michigan. There are also due process cases which contain some language supporting a challenge. In
Metro Homes v City of Warren the Court stated that retroactive legislation, which impairs vested rights is a due process violation. In 1992, the Michigan Court of Appeals reaffirmed this principle in Tax Payers United v Detroit. Like ex post facto challenges, the argument will boil down to whether the new law is punitive. In 1988, the Michigan Supreme Court stated in Romein v General Motors: "A remedial or procedural statute may operate retrospectively if it does not `take away vested rights.'" Cases interpreting Michigan’s old SORA law were as clear as mud on this point. The cases whether registration consequences were punitive or remedial were inconsistent. Believe it or not, this actually puts us ahead of Ohio which had uniformly upheld their old law. Notwithstanding this, the Ohio Supreme Court found that the increased reporting requirements, the broad public dissemination of large quantities of otherwise private information, and the expanded restrictions on former offenders pushed the law into the punitive category.

While we have a very conservative Court in Michigan, the Ohio decision gives me hope.