Two weeks ago we wrote that the Ohio Supreme Court’s decision in State v. Clayborn may be a preview as to the Court’s willingness to strike down the Adam Walsh Act on ex post facto grounds. Today the Court did indeed strike down the Adam Walsh Act, at least in part, though not on the grounds predicted.
In State v. Bodyke, 2010-Ohio-2424 [PDF], the Court held that the reclassification of sex offenders by the Attorney General amounted to a violation of the separation of powers doctrine. The Ohio Constitution gives exclusive jurisdiction to appellate courts to review the decisions of trial courts; the Court explained that “[o]ur Constitution and case law make it undeniably clear that the judicial power resides exclusively in the judicial branch.” The Court ordered the severance of the offending sections of the Adam Walsh Act.
Based on its separation-of-powers holding, the Court declined to address the other constitutional challenges, including the ex post facto argument about which we previously wrote.
Where does this leave the Adam Walsh Act? Clearly it can be applied to new offenders on a going-forward basis. By simply severing the provisions which required the AG to reclassify, is it possible that the Court has left open an avenue under which courts could reclassify? However unlikely that seems, a brief review of the decision may not rule it out.
This post was written by Jeffrey M. Nye.
