Not all sex offenders prohibited from living near schools (OR: April 2008)

by Lorie Garland
Assistant vice president
Legal Services

In 2003, Ohio’s Megan’s Law was amended to prohibit certain sexually oriented offenders from establishing or occupying a residential premise that is within 1000 feet of any school property. Ohio’s landlord-tenant laws and eviction provisions were also amended to permit a landlord to evict a tenant in violation of this provision. Subsequently, county prosecutors were given the authority to evict offenders who violated this provision. Sex offenders who owned or were convicted prior to the effective date of this residency provision felt that the law did not apply to them and that they could not be forced to move from their home that was within 1,000 feet of a school. Their position was that the law could not be applied retroactively. Appellate courts differed on the retroactive application of the residency restriction. This issue was recently resolved by the Supreme Court of Ohio.

The case involved Gerry Porter Jr. who purchased a home near Cincinnati in 1991. He lived there with his wife and two sons. Porter was convicted of sexual imposition in 1995 and sexual battery in 1999. Porter was required to register with the sheriff as a sexually oriented offender. Following enactment of the sex offender residency restriction in 2003, Green Township sought a permanent injunction that would prevent Porter from continuing to occupy his home because his property was within 1,000 feet of an elementary school. Porter opposed the injunction, claiming that the residency restriction did not apply to him. He argued that it was unconstitutional to apply the residency provision retroactively.

The Hamilton County Court of Common Pleas issued the injunction permanently prohibiting Porter from living in his home. This decision was appealed. The 1st District Court of Appeals affirmed the trial court’s decision finding that the residency restriction could be applied to an offender who bought his home and committed his offense before the effective date of the statute. However, the 1st District Court’s decision was in conflict with a 2006 decision of the 2nd District Court which held that the residency provision was unconstitutional when applied to a sex offender who purchased his home before the effective date of the 1,000 foot provision. The Supreme Court agreed to hear the Porter case to resolve the conflicting decisions of the appellate courts.

The issue the Supreme Court addressed was whether the 1,000 foot residency restriction of Megan’s Law could be applied retroactively. In previous decisions, the Supreme Court has established a two-part test to determine if a law can be applied retroactively. The first issue to be considered is whether the General Assembly expressly made the statute retroactive. Only if it did, does the court consider the second issue which is whether the restriction is substantive or remedial in nature. If a statute is expressly made retroactive, the court would then consider whether the statute violates the Ohio Constitution’s prohibition against a retroactive law that impairs vested substantive rights.

In considering the first issue, the Supreme Court reviewed Ohio law on statutory construction. Ohio law provides that a statute is presumed to apply prospectively (i.e. only to events that take place after the effective date of the law) unless expressly made retroactive. To overcome the presumption of prospectively, a statute must clearly proclaim its retroactive application.

Upon analyzing the 1,000 foot provision under this standard, the Supreme Court found that the statute did not clearly indicate the legislative intent for the 1,000 foot provision to apply to a sex offender who committed his offense and lived in his house before the residency provision was enacted. Therefore, the residency restriction could not be applied retroactively. Based upon the Court’s finding on the first part of the test, the Court did not have to consider the second part of the test, i.e. whether the restriction was substantive or remedial in nature. The Court found that the 1,000 foot residency restriction did not apply to Porter. The decision of the Court of Appeals to issue the permanent injunction was reversed.