Hyle v. Porter

O’Donnell, J.,

dissenting.

(¶ 25} Respectfully, I dissent. A plain reading of the language of former R.C. 2950.031(A) reveals the intent of the legislature that it should be applied retroactively and that it is a remedial, not a substantive, enactment. Thus, it is constitutional and prevents a person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to a sexually oriented offense or a child-victim oriented offense from either establishing or occupying residential premises within 1,000 feet of a school.

Retroactive Application

{¶ 26} Former R.C. 2950.031, now amended and recodified at R.C. 2950.034, provided, “(A) No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to either a sexually oriented offense that is not a registration-exempt sexually oriented offense or a child-victim oriented offense *171shall establish a residence or occupy residential premises -within one thousand feet of any school premises.” 150 Ohio Law’s, Part IV, 6657.

{¶ 27} Statutes are presumed to be prospective in application. R.C. 1.48. Because of this presumption, as we stated in State v. Cook (1998), 83 Ohio St.3d 404, 410, 700 N.E.2d 570, a statute does not apply retroactively “unless there has been a prior determination that the General Assembly specified that the statute so apply.” Id., citing Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph one of the syllabus. See also In re Seltzer (1993), 67 Ohio St.3d 220, 224, 616 N.E.2d 1108, which stated, “ ‘ “It is a well settled rule of law that statutes should not receive a retroactive construction, unless the intention of the legislature is so clear and positive as by no possibility to admit of any other construction.” ’ ” Id., quoting Cincinnati v. Seasongood (1889), 46 Ohio St. 296, 304, 21 N.E. 630, quoting Hoitston v. McKenna (1863), 22 Cal. 550, 554. Furthermore, in State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, paragraph one of the syllabus, this court held that the presumption of prospective application may not be overcome by ambiguous statutory language or by an inference that the General Assembly intended retroactive application.

{¶ 28} However, we have never required the General Assembly to recite talismanic phrases or magic words when expressing its intent for a statute to be applied retroactively. Instead, as we stated in Consilio, “[t]he Constitution requires the General Assembly to write statutes in such a way that people of common intelligence may understand what conduct is required.” 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 23, citing State v. Williams (2000), 88 Ohio St.3d 513, 532, 728 N.E.2d 342. We emphasized there that “[requiring the General Assembly to clearly enunciate its intent in plain terms allows casual readers of the law to immediately know what statutes are retroactive.” Id. Thus, in determining legislative intent regarding retroactive statutory application, we apply long-standing rules of statutory construction.

{¶ 29} In State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459, 852 N.E.2d 145, ¶ 37, we stated that “[i]n order to determine [legislative] intent, we must ‘ “read words and phrases in context according to the rules of grammar and common usage.” ’ ” Id., quoting State ex rel. Cincinnati Bell Tel. Co. v. Pub. Util. Comm., 105 Ohio St.3d 177, 2005-Ohio-1150, 824 N.E.2d 68, ¶ 27, quoting State ex rel. Lee v. Karnes, 103 Ohio St.3d 559, 2004-Ohio-5718, 817 N.E.2d 76, ¶ 23; see also R.C. 1.42. This court further explained in Sharp v. Union Carbide Corp. (1988), 38 Ohio St.3d 69, 70, 525 N.E.2d 1386, “[w]here a particular term employed in a statute is not defined, it will be accorded its plain, everyday meaning.” Id., citing State v. Dorso (1983), 4 Ohio St.3d 60, 62, 4 OBR 150, 446 N.E.2d 449; see also State v. Reeder (1985), 18 Ohio St.3d 25, 26-27, 18 OBR 21, 479 N.E.2d 280, quoting Mut. Bldg. & Invest. Co. v. Efros (1949), 152 Ohio St. *172369, 40 O.O. 389, 89 N.E.2d 648, paragraph one of the syllabus, and citing Youngstown Club v. Porterfield (1970), 21 Ohio St.2d 83, 86, 50 O.O.2d 198, 255 N.E.2d 262 (“The courts however will assume the legislature is using a word in its ordinary meaning and our task is to accord ‘ * * * its common, ordinary and usually accepted meaning in the connection in which it is used * * *.’ ” [Ellipsis sic.])

{¶ 30} The language used in former R.C. 2950.031 demonstrates that the General Assembly intended the statute to apply retroactively. First, the statute specifically identified the individuals to whom it applies: an individual “who has been convicted of * * * [or] has pleaded guilty to * * * either a sexually oriented offense * * * or a child-victim oriented offense,” and an individual who “is convicted of * * * or pleads guilty to either” of the designated sexual offenses. (Emphasis added.) Thus, the statute applies to persons classified as sexually oriented or child-victim oriented offenders who have already been convicted of the offenses in the past as well as those who are convicted of or plead guilty to such offenses on or after the date of the legislation. This language expressly sets forth the intent of the legislature in this regard.

{¶ 31} In corresponding fashion, former R.C. 2950.031 stated that sexually oriented or child-victim oriented offenders “shall [not] establish a residence or occupy residential premises within one thousand feet of any school premises.” (Emphasis added.) The words “establish” and “occupy” have different meanings and convey the notion that these prohibitions apply not only to the future conduct of offenders, but also to the behavior of such persons who are presently living in a residential premises located within 1,000 feet of a school premises. The word “establish,” as defined in Black’s Law Dictionary (8th Ed.2004) 586, means, inter alia, “to bring about or into existence.” See also Webster’s Third New International Dictionary (1986) 778, which provides that “establish” means “to place, install, or set up in a permanent or relatively enduring position esp. as regards living quarters,” and “to bring into existence, create, make, start, originate, found, or build.” In the context of former R.C. 2950.031, these definitions relate to an action that may occur in the future; thus, the use of this word is prospective in nature.

{¶ 32} The word “occupy,” however, has a different connotation and means “to reside in as an owner or tenant” or “to hold possession of.” Webster’s Third New International Dictionary (1986) 1561. Although Black’s Law Dictionary does not define the word “occupy,” it provides further illumination from its definitions of the words “occupancy” (“the act, state, or condition of holding, possessing, or residing in or on something”), “occupant” (“[o]ne who has possesso-ry rights in, or control over, certain property or premises”), and “occupation” (“[t]he possession, control, or use of real property”). Id. at 1108 and 1109. It is *173obvious from these definitions that the word “occupy” describes conduct that has already commenced and that is presently occurring; the term refers to a presently existing state rather than conduct to be engaged in at a future time.

{¶ 33} The role of the judiciary is to interpret statutes and give meaning to every word used by the legislature. If the General Assembly had intended only to prohibit individuals from establishing a residence within 1,000 feet of a school after its adoption of this statute, it did not need to also prohibit those individuals from occupying residential premises — but it did so. As emphasized in E. Ohio Gas Co. v. Pub. Util. Comm. (1988), 39 Ohio St.3d 295, 299, 530 N.E.2d 875, it is “a basic rule of statutory construction — that words in statutes should not be construed to be redundant, nor should any words be ignored.” Id., citing 50 Ohio Jurisprudence 2d (1961) 207, Statutes, Section 227. The General Assembly, in choosing to prohibit both the establishment of a residence and the occupation of a residential premises, intended to preclude present and future conduct regarding the location of a residence of persons described in this statute; and it did so by using language to preclude both establishing a residence and occupying one.

{¶ 34} No inference of retroactive intent is necessary in this context; here, in plain terms, former R.C. 2950.031(A) expressed the General Assembly’s intent to prohibit a sexually oriented or child-victim oriented offender not only from establishing a residence within 1,000 feet of a school but also from continuing to occupy any such residential premises. Accordingly, this statute applies retroactively to individuals such as Porter, who established a residence within the proscribed distance from a school before the enactment of this statute, and who occupies that residence.

R.C. 2950.031(A) Is Remedial and Not Substantive

{¶ 35} Not all retroactive legislation offends Section 28, Article II of the Ohio Constitution. See, e.g., Rairden v. Holden (1864), 15 Ohio St. 207, 210-211; Cook, 83 Ohio St.3d at 410, 700 N.E.2d 570; Bielat v. Bielat (2000), 87 Ohio St.3d 350, 353, 721 N.E.2d 28. If the legislature has expressed its intent for a statute to apply retroactively, then, as we stated in Bielat, “the court moves on to the question of whether the statute is substantive, rendering it unconstitutionally retroactive, as opposed to merely remedial.” (Emphasis sic.) Id. at 353, 721 N.E.2d 28, citing Cook at 410-411, 700 N.E.2d 570.

{¶ 36} In Smith v. Smith, 109 Ohio St.3d 285, 2006-Ohio-2419, 847 N.E.2d 414, we explained, “A substantive statute is one that ‘impairs vested rights, affects an accrued substantive right, or imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction.’ ” Id. at ¶ 6, quoting Bielat, 87 Ohio St.3d at 354, 721 N.E.2d 28. Remedial legislation, on the other hand, affects “the methods and procedure by which rights are recognized, protected and enforced, *174not * * * the rights themselves.” Weil v. Taxicabs of Cincinnati, Inc. (1942), 139 Ohio St. 198, 205, 22 O.O. 205, 39 N.E.2d 148. Furthermore, as stated in Bielat, 87 Ohio St.3d at 354, 721 N.E.2d 28, remedial laws “ ‘merely substitute a new or more appropriate remedy for the enforcement of an existing right.’ ” Id., quoting Cook, 83 Ohio St.3d at 411, 700 N.E.2d 570.

{¶ 37} In Cook, we considered whether statutes requiring sexual offenders to register and verify their addresses with law enforcement could be applied retroactively to individuals who had been adjudicated as sexual offenders before the enactment of those statutes. After concluding that the General Assembly intended retroactive application, we specifically acknowledged the General Assembly’s findings in support of R.C. Chapter 2950, which included the determination that “[sjexual predators and habitual sexual offenders pose a high risk of engaging in further offenses even after being released from imprisonment, * * * [and] protection of members of the public from sexual predators and habitual sexual offenders is a paramount governmental interest.” (Emphasis added.) Former R.C. 2950.02(A)(2), quoted at 83 Ohio St.3d at 416, 700 N.E.2d 570. On this basis, we held that “the registration and address verification provisions of R.C. Chapter 2950 are de minimis procedural requirements that are necessary to achieve the goals of R.C. Chapter 2950” and, therefore, that they “are remedial in nature and do not violate the ban on retroactive laws set forth in Section 28, Article II of the Ohio Constitution.” Id. at 412 and 413, 700 N.E.2d 570.

{¶ 38} Here, former R.C. 2950.031 serves the same remedial goals that the General Assembly had when enacting R.C. Chapter 2950 and that we recognized in Cook. See current R.C. 2950.02(A)(2). Presumably, the purpose for creating a 1,000-foot radius around school premises is to protect children from the risks posed by sexually oriented and child-victim oriented offenders, which is a paramount government interest. Such legislation does not create or impair any substantive rights in either the child or the offender; rather, it provides a remedy to protect the health, safety, and welfare of children, parents, and the public. Moreover, this remedial purpose outweighs whatever right a sexually oriented or child-victim oriented offender has to continue to occupy a residence within the statutorily proscribed perimeter around a school facility, and as we stated in State ex rel. Matz v. Brown (1988), 37 Ohio St.3d 279, 282, 525 N.E.2d 805, “felons have no reasonable right to expect that their conduct will never thereafter be made the subject of legislation.”

{¶ 39} Some argue that this legislation denies sexually oriented and child-victim oriented offenders a fundamental right; this view fails to recognize that certain convicted felons also are precluded from exercising numerous rights that may be considered fundamental, such as the right to vote and the right to possess a firearm. See R.C. 2961.01(A) and 2923.13(A)(2). Here, the paramount concern *175is protection of the public from the risks posed by sexually oriented and child-victim oriented offenders, and this remedial legislation is both appropriate and constitutional.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney; Hyle & Mecklenborg Co., L.P.A., and Robert P. Mecklenborg, for appellee. Ohio Justice & Policy Center, David A. Singleton, and Stephen JohnsonGrove, for appellant. Rosenthal Institute for Justice, University of Cincinnati College of Law, and Jenny E. Carroll, urging reversal for amici curiae Iowa County Attorneys Association, Iowa Coalition Against Sexual Assault, Iowa State Sheriffs & Deputies Association, Jacob Wetterling Foundation, and Association for the Treatment of Sexual Abusers. Jeffrey M. Gamso, urging reversal for amici curiae American Civil Liberties Union of Ohio Foundation, Inc. and Ohio Association of Criminal Defense Lawyers. Marc Dann, Attorney General, William P. Marshall, Solicitor General, Stephen P. Carney, Deputy Solicitor, and Frank M. Strigari, Assistant Attorney General, urging affirmance for amicus curiae Attorney General of Ohio.

{¶ 40} Accordingly, because the General Assembly expressed its intent that this legislation be retroactive, and because this statute is remedial rather than substantive, its retroactive application to offenders such as Porter does not violate Section 28, Article II of the Ohio Constitution. For these reasons, I respectfully dissent.