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Separation of Powers? Ohio Supreme Court Will Not Allow State Attorney General To Reclassify Sex Offenders Already Classified By Court Order.
In law school, I took a class involving issues of federalism and separation of powers. On my exam, the professor asked about constitutional ways one branch can infringe on the other branches even though it breaks the spirit of the Constitution. For example, what is to stop the President of the United States, as commander in chief, from marching the army on Congress? In any event, the judicial branch has little at its disposal to check the other branches. Granted, the judiciary can declare a law unconstitutional, but what if the other branches ignore the judiciary. What if the judiciary claims that the separation of powers prevents the other branches from infringing on the judiciary’s domain? That is what happened in the following case. Should the judiciary dictate to other branches that it is infringing on its area of power?
Read the opinion Ohio v. Bodyke
Like every state, Ohio passed a sex offender registration law in the wake of the death of Megan Kanka in New Jersey. Under that law, Ohio classified sex offenders into three different categories, and the offender’s requirements with respect to registration and related issue depends on the classification. Later, the Federal government, in order to unify sex offender registration law, required states, in order to receive federal funds to fight crime, to pass a uniform registration and classification law.
Ohio complied and passed its own Adam Walsh law. The law also had three different classifications of sex offenders. The requirements with respect to each classification differed from what the previous law required. Additionally, the law designated the Ohio Attorney General to reclassify sex offenders who had been classified after the adjudication under the previous law. Reclassified individuals, who are now subject to more stringent laws, sued and claimed that the reclassification violated the ex post facto clause of the Ohio Constitution. Instead of addressing the ex post facto argument (since courts have continuously upheld sex offender registration laws against ex post facto challenges), the Ohio Supreme Court invalidated those sections of the law reclassifying sex offenders because it violated principles of separation of powers.
Even though the Ohio Constitution does not specifically address the separation of powers, the doctrine is implicitly embedded in the framework of the Constitution. The essential principle underlying the policy of the division of powers of government into three departments is that powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments, and further that none of them ought to possess directly or indirectly an overruling influence over the others.
When the judiciary is going to assert that another branch is infringing on its power, it must do so sparingly. Still, the courts must guard against the other branches from reviewing judicial decisions or reopening final judgments. The Ohio law infringes this basic tenet of the separation of powers.
Individuals had already been classified as sex offenders through court actions. These classifications result in different registration requirements for these individuals. It also allows for how long one must register as a sex offender. The reclassification puts a greater burden on these individuals, and all contrary to a court order. As the Court notes:
The legislative attempt to reopen journalized final judgments imposing registration and community notification requirements on offenders so that new requirements may be imposed suffers the same constitutional infirmity. It does not matter that the legislature has the authority to enact or amend laws requiring sex offenders to register or that the current Sex Offender Act does not order the courts to reopen final judgments. The fact remains that the General Assembly cannot annul, reverse, or modify a judgment of a court already rendered.
Instead of declaring the entire Adam Walsh law unconstitutional, the Court just severed those provisions giving the Attorney General the power to reclassify sex offenders from the bill and invalidate them as unconstitutional. Thus, sex offenders classified under the old law will be classified as such.