State ex rel. White v. Billings

2006 Ohio 4743, 860 N.E.2d 831, 139 Ohio Misc. 2d 76
CourtClermont County Court of Common Pleas
DecidedAugust 10, 2006
DocketNo. 2005 CVH 1328
StatusPublished
Cited by1 cases

This text of 2006 Ohio 4743 (State ex rel. White v. Billings) is published on Counsel Stack Legal Research, covering Clermont County Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. White v. Billings, 2006 Ohio 4743, 860 N.E.2d 831, 139 Ohio Misc. 2d 76 (Ohio Super. Ct. 2006).

Opinion

ROBERT P. Ringland, Judge.

{¶ 1} Two issues await resolution in this case. First, one of the respondents filed a motion to dismiss on February 15, 2006. The relator filed a memorandum in opposition on April 20, 2006, and a reply was filed on May 24, 2006. Second, a trial to the court was held on May 30, 2006, on the relator’s right to relief on its complaint. The relator filed a posttrial memorandum on June 13, 2006, and the respondent, on July 11, 2006. The court took the matter under advisement and now renders the following decisions.

I. MOTION TO DISMISS OLIVIA BILLINGS

{¶ 2} Olivia Billings argues that the complaint fails to state a claim as to her and moves that the complaint be dismissed pursuant to Civ.R. 12(B)(6).

A. FACTS

{¶ 3} The relator, the state of Ohio, filed a complaint for injunctive relief under R.C. 2950.031. The state sought an order enjoining the respondent Garland Billings (“Billings”) from residing in the home he shares with his wife, Olivia Billings. It further sought an injunction preventing Olivia Billings from allowing Billings to reside there. The portions of the complaint relevant to the state’s claim against Olivia Billings read as follows:

1. * * * Garland Billings, is a 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 who has established residency or occupied a residential premises within 1,000 feet of a school premises.
2. [Billings] has established a residence or occupies residential premises at 130 Chapel Road, Amelia, Ohio, 45102, Clermont County, Ohio which is within 1,000 feet of the school premises known as Amelia Elementary School, 5 E. Main Street, Amelia, Ohio, 45102, located in Clermont County, Ohio.
4. * * * Olivia Billings is the owner of the residential premises located at 130 Chapel Road, Amelia, Ohio 45102 which allowed [Billings] to reside in the premises contrary to the provisions of 2950.031(A) of the Revised Code.
[80]*806. As of the filing of this Complaint, [Billings] continues to live in the residential premises and the Respondent, Olivia Billings continues to allow [Billings] to reside at the premises, all in violation of Section 2950.031(A).
* * *
WHEREFORE, [the state] demands * * * that the Court issue an order enjoining [Olivia Billings] from allowing [Billings] or any other person contrary to Section 2950.031 from residing or occupying said premises * * *.

B. LEGAL STANDARD

{¶ 4} In order for a complaint to be dismissed for failure to state a claim, “it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.” 1 Furthermore, in construing a complaint upon a motion to dismiss for failure to state a claim, a court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party.2 “As long as there is a set of facts, consistent with the plaintiffs complaint, which would allow the plaintiff to recover, the court may not grant a defendant’s motion to dismiss.”3

C. LEGAL ANALYSIS

{¶ 5} Olivia Billings argues that the complaint fails to state a claim as to her and moves that the complaint be dismissed pursuant to Civ.R. 12(B)(6). The complaint alleges that Olivia Billings is acting in violation of R.C. 2950.031(A) by allowing Billings to reside at the 130 Chapel Road premises. R.C. 2950.031(A) provides:

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.

{¶ 6} The statute is wholly concerned with individuals who have been convicted of sexually oriented offenses. There is no prohibition within it concerning persons who have not been convicted of sexually oriented offenses. It is therefore clear that there is no set of facts, consistent with the complaint, that would entitle the state to the relief it seeks against Olivia Billings.

[81]*81{¶ 7} The state argues that Billings is a necessary party whose joinder is appropriate under Civ.R. 19(A). That rule concerns parties to be joined if feasible and provides:

A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (a) as a practical matter impair or impede his ability to protect that interest or (b) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest, or (3) he has an interest relating to the subject of the action as an assignor, assignee, subroger, or subrogee.

The state failed to explain under which provision of the rule Olivia Billings may be considered a necessary party to this action. The state similarly failed to point to any authority to support its proposition. The court finds nothing in the rule or in Ohio decisional law that supports the state’s position.

{¶ 8} Because R.C. 2950.031 deals entirely with remedies that may be had against sex offenders who live within 1,000 feet of a school, complete relief may be afforded in an action against Billings only. Olivia Billings claims no interest relating to the subject of this action, and there is no allegation that Olivia Billings has any interest in this action by way of assignment or subrogation. Olivia Billings is therefore not a necessary party to this action and need not be joined under Civ.R. 19(A).

{¶ 9} Olivia Billings’s motion is well taken and is granted.

II. THE STATE’S RIGHT TO INJUNCTIVE RELIEF UNDER R.C. 2950.031

{¶ 10} At trial, the parties presented evidence by way of stipulation, oral testimony, and exhibits. The state’s evidence focused on its right to injunctive relief while Billings’s presentation focused on whether R.C. 2950.031 is unconstitutional. In his answer, Billings asserted that the statute violates seven separate constitutional principles. In his posthearing brief, he pursues only two constitutional arguments, the Ex Post Facto Clause of the United States Constitution and the Retroactivity Clause of the Ohio Constitution. He also urges that the statute should not be applied to him for equitable reasons. The court will therefore address only those three defenses and deems the defenses asserted in the answer but not pursued at trial or in Billings’s brief waived.4

[82]*82A. STIPULATED FACTS

{¶ 11} Billings was convicted of the rape of an adult female on July 22, 1991, in Hamilton County, Ohio.

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Related

State Ex Rel. White v. Billings, Ca2006-09-072 (8-27-2007)
2007 Ohio 4356 (Ohio Court of Appeals, 2007)

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Bluebook (online)
2006 Ohio 4743, 860 N.E.2d 831, 139 Ohio Misc. 2d 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-white-v-billings-ohctcomplclermo-2006.