Second Amendemnt opponents take note: the Court has implied that it will allow certain “reasonable” restrictions on gun ownership short of an outright ban, though the extent of those restrictions is not clear.

The First District affirmed in all respects, and agreed with the trial court’s statement that the “successful prosecution of the action had prevented illegal government activity in the form of ‘the assumption of power by the Cincinnati city council that it was not entitled to assume or exercise.’”

The case was brought by Christopher Smitherman.  He was represented by FSSP lawyers Chris Finney and Josh Bolinger, as well as The Law Firm of Curt C. Hartman.

The case is City of Cincinnati ex rel. Christopher Smitherman v. City of Cincinnati [PDF].

ALEC’s 37th Annual Meeting will be held in the Manchester Grand Hyatt in San Diego, CA from August 5-8, 2010.

The ALEC is a non-profit organization dedicated to advancing the Jeffersonian principles of free markets, limited government, federalism, and individual liberty, through a nonpartisan public-private partnership of America’s state legislators, members of the private sector, the federal government, and general public.

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.

The issue in Clayborn was simply the amount of time in which an offender who is classified under the Adam Walsh Act has to appeal.  Appellate Rule 4 states that in a criminal case, a party has 30 days after entry of judgment to appeal.  But in a civil case, a party has up to 30 days after being served with notice of the entry of judgment.  In other words, in a civil case if the clerk fails to serve notice of the judgment under Civ.R. 58(B), the appeal time is extended, but in a civil case it’s not.  The Court held that sex offender classifications under the Adam Walsh Act can only be appealed under the more stringent criminal rule, not the more lenient civil rule.

What does this have to do with the validity of the Act itself?  Good question.  The Adam Walsh Act, also known as R.C. Chapter 2950, required the state to re-classify all existing sex offenders into one of three new tiers.  The reporting requirements for each tier were significantly more stringent than the prior reporting requirements.  For example, an offender who had been convicted of a sexual battery may have been previously classified as a sexual offender and ordered to register annually for ten years.  Under the Adam Walsh Act, that person (so long as they were still within that ten-year notification period) would be classified as a Tier III offender and would have to register every 90 days for life.

Many offenders have challenged the law as unconstitutional.  A variety of theories are usually trotted out, including the separation of powers doctrine, equal protection, double jeopardy, and plea-bargain-as-contract.  Particularly relevant here, though, is that the petitioners usually argue that the Adam Walsh Act violates the prohibition on retroactive laws in the Ohio Constitution (Article II, Section 28) or the ex post facto clause in the U.S. Constitution (Article I, Sections 9-10).

To my knowledge, all Ohio appellate courts have rejected these arguments to date.  They tend to rely on the 1998 Ohio Supreme Court case of State v. Cook (83 Ohio St.3d 404), in which the Court approved the sex offender classification law enacted in 1997, known as Megan’s Law.  The Cook Court held, among other things, that the sex offender law was a “merely remedial” law, and not a “substantive” law.  The Court explained that “the General Assembly’s purpose behind R.C. Chapter 2950 is to promote public safety and bolster the public’s confidence in Ohio’s criminal and mental health systems,” and further found that “[t]he statute is absolutely devoid of any language indicating an intent to punish.”   As directly and bluntly as possible, the Court said that “R.C. Chapter 2950, on its face, clearly is not punitive.” 

“Merely remedial” and “not punitive” are other ways of saying “civil, not criminal.”  In other words, the Cook Court’s approval of the classification system is based on a finding that the sex offender registration was a civil statute, not a criminal statute. 

The significance of the Clayborn holding should be evident: the Court has now said, at least for purposes of protecting appellate rights, that the Adam Walsh Act must be treated as a criminal statute, not a civil statute. 

Challenges to the Adam Walsh Act are pending before the Court right now.  In November, for example, the Court heard argument in In re: Darian J. Smith, in which the petitioner contested the validity of the Adam Walsh Act on ex post facto and retroactivity grounds (docket available here).  The decision in Clayton may indicate a tendency to strike down the Adam Walsh Act, or at least its retroactive application.

Additional coverage from today’s Cincinnati Enquirer is available here.

And click here for our previous coverage of this case, which paved the way for Ohio legislators who leave office to immediately begin exercising their core political speech rights, rather than waiting 12 months to do so.

DISCLOSURE: The author of this post served as Plaintiffs’ co-counsel in this case.

Kevin Trudeau, who is apparently an infomercial salesman and radio personality in Chicago, was a litigant in a civil case before Judge Gettelman.  Trudeau urged his listeners to email the judge and to encourage the judge to rule in Trudeau’s favor.  After receiving hundreds of messages, Gettelman found Trudeau in contempt and sentenced him to 30 days in jail.  The Seventh Circuit stayed the sentence while it considered whether the judge had the authority to punish conduct which occurred only in the court’s “virtual presence,” rather than in the courtroom; arguments were heard on April 7.  The contempt order can be read here.

The Seventh Circuit is said to be concerned with the interesting question of whether Trudeau’s urging of the listeners can constitute contempt despite the fact that it did not occur in the judge’s direct presence.  I am not familiar with the statutes, if any, which are applicable to Trudeau’s case, but under Ohio law it seems to me that the answer would be yes.  R.C. 2705.01 permits “[a] court, or judge at chambers, may summarily punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.”  It appears that as a practical matter the misbehavior was quite near the judge, as it showed up in his inbox and froze his BlackBerry. On the other hand, the misbehavior which manifested in the judge’s inbox was perhaps not Trudeau’s misbehavior at all, but rather that of his radio listeners.  Although Trudeau surely asserted it, it is hard to see any First Amendment defense here.

From what I can tell, the crux of this case is only whether inconvenience of the email is punishable.  The court is evidently not concerned with the propriety of a party asking others to lobby on his behalf, which may be contempt regardless of where it occurs; because judges frequently admonish litigants to avoid engaging in that sort of advocacy, such action could be a violation of a direct court order, and therefore surely punishable.

In any event, this is just yet another example of the confluence of electronic media and traditional notions of justice.  We have seen this pop up several times recently, including service of an injunction and/or CIA surveillance through Twitter, trademark infringement claims in online advertising, the Supreme Court prohibiting YouTube coverage of the Prop 8 trial, and more.

In reaching its conclusion that the statute was facially constitutional, the Court relied in part on the statute’s legislative history, explaining that it “embodies the General Assembly’s intent to significantly curtail an employee’s access to common-law damages for what we will call a ‘substantially certain’ employer intentional tort” — but also noted that the statute “does not abolish the tort entirely.”

The Court also reiterated its prior holding that “the legislative branch of government is ‘the ultimate arbiter of public policy’” and that “the legislature is entrusted with the power to continually refine Ohio’s laws to meet the needs of our citizens.”  Furthermore, the Court wrote that “[i]t is not the role of the courts to second-guess the General Assembly’s policy choices,” including policy choices which “alter, revise, modify, or abolish the common law.”

As to the merits of the certified questions, the Court rejected the argument that the current version of R.C. 2745.01 was so similar to prior unconstitutional versions that stare decisis must apply to invalidate it.  Instead, the current version differs in the required standard of proof and lacks several limitations on damages contained in prior versions. 

The cases are Stetter v. R.J. Corman Derailment Services, LLC, 2010-Ohio-1029 [PDF] and Kaminski v. Metal & Wire Products Company, 2010-Ohio-1027 [PDF].

• Civil Procedure & Federal Courts Blog points to a forthcoming article in the Lewis & Clark Law Review regarding the effect of Iqbal and Twombley, which we have previously blogged about.  CP&FCB also noted a recent decision in the Northern District of Illinois which denied a motion to dismsis despite Iqbal‘s heightened pleading standard.
• The White House announced the nomination of Judge Kate O’Malley of the Northern District of Ohio for a vacant seat on the Federal Circuit.  O’Malley has significant experience in patent cases.
• The Second Circuit ruled that the First-Amendemnt constittuionality of a zoning ordinance must be determined at the time the ordinance is challented, not at the time the ordinance is passed.  The case is TJS of New York, Inc. v. Town of Smithtown [PDF].
• A few weeks old, but Jack Greiner at Graydon Head notes this interesting wired.com article about First Amendment protection for students.

The majority rejected the property owners’ claim that the statute was tolled due to a continuing violation; rather than a continuing violation, the Court characterized the repeated use of the trail by the park board and the public as “the present effect of past violations” and explained that “a continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation.”  And the Court held that it was just one event — the construction of the trail — which constituted the violation in this case.

In dissent, Justice Pfeiffer argues that repeated entrance onto the property of the relators constituted repeated or continuing violations of their constitutional property rights.  He likens it to a continuing trespass or nuisance, in which the statute of limitations is tolled, and he rejected the argument that a tolling rule would render the statute of limitations meaningless–it would still apply, for example, to temporary takings or true single-event takings, such as the installation of a utility line for which no repeated access is necessary.

The language of the statute at issue here does appear to favor the majority — R.C. 2305.09 provides that an action “[f]or relief on the grounds of a physical or regulatory taking of real property” “shall be brought within four years after the cause of action accrued.”  But refusing to recognize a tolling rule also seems to run afoul of Section 19, Article I of the Ohio Constitution, which provides in part that “Private property shall ever be held inviolate . . . .”  And it seems to me that even if the four years expired based on the initial installation of the trail, the subsequent installation of benches, parking areas, and so on would be new violations which would not rely on a tolling rule at all.

Almost as a side note, the Court observed in reference to prior litigation on similar issues that “[u]nlike other judgments . . . a declaratory judgment determines only what it actually decides and does not preclude other claims that might have been advanced.”  Is this authorization from the Supreme Court to use a dec action to circumvent the normal rules of res judicata?  It may be.

All in all, an unusual decision from the Court, and one which is not especially friendly to property rights.

The case is State ex rel. Nickoli v. Erie MetroParks, 2010-Ohio-606 [PDF].