Thursday, October 30, 2008

OH: Franklin County Judge Rules Against Adam Walsh Act

Columbus Dispatch ( Columbus OH) : Franklin County Judge Rules Parts of Adam Walsh Act Unconstitutional.

"I anticipate that one or both of the parties in the case will appeal," Judge Schneider said. "It won't rest until the Court of Appeals and ultimately the Supreme Court rules on this decision. So, I encourage them to appeal. Only the Supreme Court can render the ultimate decision."

Under the Adam Walsh Act, which took effect Jan. 1, 2008 in Ohio, Plaintiff Toles was reclassified as a Tier III offender, requiring him to register quarterly for the rest of his life. He also became subject to community notification, under which the sheriff is required to notify his neighbors and others in the community of his residence.

Schneider ruled that Toles, 38, is not subject to community notification because a hearing at the time of his conviction determined he was not a sexual predator.

The judge also ruled that much of the information required on the registration form under the new law posed an unreasonable burden in Toles' case, such as license-plate numbers of vehicles available to him, where those vehicles are usually kept, telephone numbers he uses, and "any other information required by (the state Bureau of Criminal Identification and Investigation) without limitation."

"How does anyone know what telephone numbers he might use?" Schneider wrote. "Most troubling is the open invitation to BCI to add additional requirements without limitation."

Although Schneider's ruling applies only to Toles, Skendelas expects it to be "persuasive" when other Franklin County judges consider similar cases. The county public defender's office is handling more than 500 challenges to the law, he said.
Read this court decision here, or here.


Court of Common Pleas, Franklin County Ohio, Judge Schneider (9 Sept 2008):

The issue before the court was the plaintiff's requirement to register to satisfy the requirements of the new Adam Walsh Act law (Senate Bill 10), and the County Sheriff's obligation of community notification.

The challenge was based on the constitutional violation of the law with respect to The Ohio Constitution, which prohibits any law from being passed retrospectively (or retro-actively) This prohibition is also included in the Ex Post Facto Clause of the United States Constitution. (see related case State of Ohio v. Cook 1998 )

Judge Schneider found that the law was applied retrospectively but he failed to recognize that the new requirements of reporting were substantive (i.e. punishment, burdensome). This is a failure that has been seen in other courts. Judges are unable to understand the burdensome nature of the new law's reporting requirements.

Judge Schneider did however recognize as burdensome, some of the requirements of the new law which would require reporting of previously-not required information (travel documents, social security number, license plate of vehicles owned or used by offender, where vehicles are parked, photographs of such vehicles, professional licenses or permits, email addresses, telephone numbers, internet identifiers, and "any other information required by BCI (Bureau of Criminal Identification and Investigation) without limitation").

Furthermore, the Judge wrote that the change in classification imposes burden to the offender in restricting their ability to move without stigma and burden. Judge Schneider writes "This court concludes that these requirements constitute a new affirmative disability or restraint".

The Court finds that "the new registration requirements go way beyond the limits of the requirements considered by the Ohio v. Cook court. Pursuant to the Adam Walsh Act, the new registration requirements are much more detailed , much more burdensome and much less narrowly tailored and apply to all classifications of sex offenders. In fact, it is impossible for this Court of anyone else to determine exactly what the requirements are because the statute authorizes "any other information required by the bureau of criminal identification and investigation".

Judge Schneider concludes: "Based on the foregoing, the Court finds that the additional registration requirements beyond frequency and duration ... are clearly punitive in their effect and therefore violate the Ex Post Facto Clause of the U.S. Constitution."

Regarding re-classification, the Court holds "that if a previously convicted sex offender had the benefit of a hearing pursuant to R.C. 2950.09 and was found by a court not to be a sexual predator, the community notification provisions of R.C. 2950.11 do not apply." Judge Schneider continued in writing that "an offender who has been adjudged as not being a sexual predator has an expectation that he could make decisions based on that finding."