Hyle v. Porter

117 Ohio St. 3d 165

• Court: Ohio Supreme Court
• Decided: February 20, 2008
• Docket: No. 2006-2187
• Status: Published

Opinions

Moyer, C.J.

{¶ 1} The First District Court of Appeals found its judgment in this case to be in conflict with the judgment of the Second District Court of Appeals in Nasal v. Dover, 169 Ohio App.3d 262, 2006-Ohio-5584, 862 N.E.2d 571, and certified the record to this court for review and final determination. We determined that a conflict exists on the following issue: “Whether R.C. 2950.031 — Ohio’s residency-restriction statute prohibiting certain sexually oriented offenders from living within 1,000 feet of a school — can be applied to an offender who had bought his home and committed his offense before July 31, 2003 (the effective date of the statute).” 112 Ohio St.3d 1487, 2007-Ohio-724, 862 N.E.2d 115.

{¶ 2} We hold that R.C. 2950.031 does not apply to an offender who bought his home and committed his offense before the effective date of the statute. The judgment of the First District Court of Appeals is reversed.

I

{¶ 3} Appellant Gerry R. Porter Jr. was convicted of sexual imposition in 1995 and of sexual battery in 1999. The Court of Common Pleas of Hamilton County entered an order determining that Porter was a sexually oriented offender. Porter subsequently registered as a sexually oriented offender.

{¶ 4} In 2003, the General Assembly imposed residency restrictions on certain sexually oriented offenders through the enactment of R.C. 2950.031, later amended and recodified as R.C. 2950.034.¹ Former R.C. 2950.031(A) provides as follows: “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 shall establish a residence or occupy residential premises within one thousand feet of any school premises.” 150 Ohio Laws, Part IV, 6657.

{¶ 5} Following the enactment of former R.C. 2950.031, Francis M. Hyle, the chief legal officer of Green Township in Hamilton County, Ohio, initiated the current action against Porter. Hyle alleged that Porter had been convicted of a sexually oriented offense that was not registration-exempt and that Porter’s residence in Cincinnati was within 1,000 feet of the premises of a school, in violation of R.C. 2950.031. Hyle sought a permanent injunction that would enjoin Porter from continuing to occupy his residence. Porter and his wife, Amanda Porter, had co-owned and lived in the house since 1991.

{¶ 6} The trial court permanently enjoined Porter from occupying his home. The First District Court of Appeals affirmed the trial court decision and held that R.C. 2950.031 could be applied to an offender who bought his home and committed his offense before the effective date of the statute. Hyle v. Porter, 170 Ohio App.3d 710, 2006-Ohio-5454, 868 N.E.2d 1047. Upon motion for reconsideration, and in response to the release of the decision in Nasal v. Dover, 169 Ohio App.3d 262, 2006-Ohio-5584, 862 N.E.2d 571, the court of appeals sua sponte certified its judgment as being in conflict with Nasal, and we agreed to resolve the conflict.

II

{¶ 7} We are once again required to apply two provisions of Ohio law that limit the retroactive² application of statutes. The first is the rule of statutory construction, adopted in R.C. 1.48: “A statute is presumed to be prospective in its operation unless expressly made retrospective.” See Van Fossen v. Babcock Wilcox Co. (1988), 36 Ohio St.3d 100, 105, 522 N.E.2d 489. The second is a rule of constitutional limitation, imposed in Section 28, Article II of the Ohio Constitution: “The general assembly shall have no power to pass retroactive laws * * *.” See Van Fossen, id. A retroactive statute is unconstitutional if it retroactively impairs vested substantive rights, but not if it is merely remedial in nature. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 9.

{¶ 8} In Consilio, we applied these two provisions in the form of a two-part test to determine whether a statute may be applied retroactively. Id. at ¶ 10. Under this test, we first ask whether the General Assembly expressly made the statute retroactive. Id. If it did, then we determine whether the statutory restriction is substantive or remedial in nature. Id. The first part of the test determines whether the General Assembly “expressly made [the statute] retroactive,” as required by R.C. 1.48; the second part determines whether it was empowered to do so. Van Fossen, 36 Ohio St.3d at 106, 522 N.E.2d 489.

{¶ 9} We do not address the question of constitutional retroactivity unless and until we determine that the General Assembly expressly made the statute retroactive. Id.; State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, 772 N.E.2d 1172, ¶ 14; Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 10. “[N]o constitutional question is ripe for judicial review ‘where the case can be disposed of upon other tenable grounds.’ ” Van Fossen, 36 Ohio St.3d at 105, 522 N.E.2d 489, quoting Ireland v. Palestine, Braffetsville, New Paris, & New Westville Turnpike Co. (1869), 19 Ohio St. 369, 373.

{¶ 10} We therefore begin our retroactivity analysis with the question of statutory interpretation. Pursuant to R.C. 1.48, if the statute is silent on the question of its retroactive application, we must apply it prospectively only. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 40. In order to overcome the presumption that a statute applies prospectively, a statute must “clearly proclaim” its retroactive application. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, paragraph one of the syllabus. Text that supports a mere inference of retroactivity is not sufficient to satisfy this standard; we cannot infer retroactivity from suggestive language. Id.

{¶ 11} Two arguments are advanced in support of the proposition that R.C. 2950.031 was expressly made retroactive. Both concern the language of the statute. First, Hyle notes that the description of convicted sex offenders uses contrasting verb tenses, past and present: “No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads gidlty to [specified categories of sexual offenses] * * (Emphasis added.) Former R.C. 2950.031(A). Hyle argues that the use of these two contrasting verb tenses, including one in a form of the past tense, indicates that the statute applies to convictions before and after the effective date of the statute.

{¶ 12} Second, amicus curiae Attorney General of Ohio notes that the statute’s description of prohibited acts includes the verb “occupy,” which he argues denotes “continue to occupy”: “No person * * * shall establish a residence or occupy residential premises within one thousand feet of any school premises.” In particular, the attorney general argues that the two different verbs in the above passage — “shall establish a residence” and “occupy residential premises” — denote two different prohibited activities, and that unless the term “occupy” is interpreted to mean “continue to occupy,” the phrases “shall establish a residence” and “occupy residential premises” are redundant. The attorney general thus argues that the statute applies to an offender who purchased his home before the effective date of the statute as well as to an offender who purchased his home after the effective date of the statute.

{¶ 13} On review of the text of R.C. 2950.031, we find that neither the description of convicted sex offenders nor the description of prohibited acts includes a clear declaration of retroactivity. Although we acknowledge that the language of R.C. 2950.031 is ambiguous regarding its prospective or retroactive application, we emphasize that ambiguous language is not sufficient to overcome the presumption of prospective application. The language in R.C. 2950.031 presents at best a suggestion of retroactivity, which is not sufficient to establish that a statute applies retroactively.

{¶ 14} Two previous cases serve as examples of clear expressions of retroactivity and underscore the absence of a comparable declaration in former R.C. 2950.031.

{¶ 15} In Van Fossen, we based our finding of a clearly expressed legislative intent for former R.C. 4121.80 to apply retroactively on the following passage: “This section applies to and governs any action * * * pending in any court on the effective date of this section * * * notwithstanding any provisions of any prior statute or rule of law of this state.” Former R.C. 4121.80(H), 141 Ohio Laws, Part I, 736-737. Van Fossen, 36 Ohio St.3d at 106, 522 N.E.2d 489.

{¶ 16} In State v. Cook (1998), 83 Ohio St.3d 404, 700 N.E.2d 570, our finding that the General Assembly specifically made R.C. 2950.09 retroactive was based in part on an express provision making the statute applicable to anyone who “was convicted of or pleaded guilty to a sexually oriented offense prior to the effective date of this section, if the person was not sentenced for the offense on or after” that date. Former R.C. 2950.09(C)(1), 146 Ohio Laws, Part II, 2620. Id. at 410, 700 N.E.2d 570.

{¶ 17} Both former R.C. 4121.80(H) and former 2950.09(C)(1) expressly make their provisions applicable to acts committed or facts in existence prior to their effective dates. In addition, R.C. 4121.80(H) expressly proclaimed its applicability in spite of contrary preexisting law by including the phrase “notwithstanding any provisions of any prior statute or rule of law of this state.” Thus, both statutes include strong and unmistakable declarations of retroactivity.

{¶ 18} These examples demonstrate that the drafters of legislation know the words to use in order to comply with the Ohio Constitution and the requirement created by the General Assembly (R.C. 1.48).

{¶ 19} The text of R.C. 2950.031, by contrast, does not feature a clear declaration of retroactivity in either its description of convicted sex offenders or its description of prohibited acts. The statute does not proclaim its applicability to acts committed or facts in existence prior to the effective date of the statute or otherwise declare its retroactive application. In the present case, the absence of a clear declaration comparable to the two excerpted above precludes the retrospective application of R.C. 2950.031.

{¶ 20} An analysis of the text that Hyle advances as a declaration of retroactivity demonstrates its lack of clarity. First, in response to Hyle’s argument regarding the use of a form of the past tense in the description of convicted sex offenders, we refer to our decision in Kiser v. Coleman (1986), 28 Ohio St.3d 259, 28 OBR 337, 503 N.E.2d 753. In Kiser, we held that there was no indication that two statutes were intended to have retroactive application, despite the fact that both used a form of the past tense. Id. at 261-262, 28 OBR 337, 503 N.E.2d 753.

{¶ 21} In particular, R.C. 5313.08, considered in Kiser, includes the following language: “If the contract has been in effect for less than five years, * * * the vendor may bring an action for forfeiture.” (Emphasis added.) In addition, R.C. 5313.07, also considered in Kiser, includes the following language: “If the vendee of a land installment contract has paid * * * for a period of five years or more * * *, the vendor may recover possession of his property only by use of a proceeding for foreclosure.” (Emphasis added.) Our decision in Kiser thus demonstrates that we have previously found similar language insufficient to overcome the presumption of prospective application.

{¶ 22} In addition, in response to the attorney general’s argument that “occupy” denotes “continue to occupy” in the description of prohibited acts, we note two characteristics of R.C. 2950.031 that counter his argument and suggest prospective application. First, the description of prohibited acts is in the present tense: “shall establish” and “occupy.” As we have previously noted, “ ‘[a] statute, employing operative language in the present tense, does not purport to cover past events of a similar nature.’ ” Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 17, quoting Smith v. Ohio Valley Ins. Co. (1971), 27 Ohio St.2d 268, 276, 56 O.O.2d 160, 272 N.E.2d 131. Second, the two verbs in the description of prohibited acts could reasonably denote two distinct, present-tense meanings. For example, “establish a residence” could mean “purchase and occupy a permanent home,” and “occupy a residence” could mean “live in a temporary residence or occupy another’s home.” The language cited is therefore not a clear declaration of retroactivity.

{¶ 23} Hyle argues in the alternative that it was not necessary for the General Assembly to expressly state that R.C. 2950.031 applies retroactively. In particular, he argues that “R.C. Chapter 2950 as a whole supports the General Assembly’s retroactive intent” and that without an express statement that a particular provision in that chapter applies prospectively only, the provision applies retroactively. Hyle’s argument reverses the presumption codified in R.C. 1.48. The General Assembly is not required to specify the prospective nature of a statute. On the contrary, R.C. 1.48 provides that “[a] statute is presumed to be prospective in its operation unless expressly made retrospective.” (Emphasis added.) We therefore reject Hyle’s argument that R.C. Chapter 2950 “as a whole” applies retroactively.

Ill

{¶ 24} Our conclusion that R.C. 2950.031 was not expressly made retrospective precludes us from addressing the constitutional prohibition against retroactivity. Van Fossen, 36 Ohio St.3d at 106, 522 N.E.2d 489. We hold that because R.C. 2950.031 was not expressly made retroactive, it does not apply to an offender who bought his home and committed his offense before the effective date of the statute. The judgment of the court of appeals is reversed.

Judgment reversed.

Pfeifer, Lundberg Stratton, Lanzinger, and Cupp, JJ., concur. O’Connor, J., concurs in judgment only. O’Donnell, J., dissents.

1 . Ail references to R.C. 2950.031 in this opinion refer to the 2003 Am.Sub.H.B. No. 5 version of the statute.

2 . The terms “retroactive” and “retrospective” may be used interchangeably to refer to a law that affects “ ‘acts or facts occurring, or rights accruing, before it came into force.’ ” State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 1, fn. 1 (quoting Black’s Law Dictionary (6th Ed.1990) 1317).