the issue before the court today whether an individual who was subjected to a sex offender registration scheme is in custody for purposes of behaviors to petition the helen in this case was convicted in the state court in the state of ohio for one count of sexual battery and as a result of that she was designated as a tear three sex offender and had numerous obligations and restrictions how as a result of that she exhausted her appellate remedies in state court and then found a hideous petition to challenge the basis of that conviction the district court dismissed the petition for lack of jurisdiction saying that the petitioner was not in custody and citing this court's decision and leslie we're here today asking the court to revisit that decision for a number of reasons first of all the legislative scheme that the leslie case was based on has been repealed and replaced with a new sex offender registration scheme that is far more onerous far more restrictive and far more expansive one of the things that this court based its decision on and lesl is the supreme court of ohio's decision and cook and in cook the supreme court determined that the sex offender registration scheme in place at that time was remedial it was a civil collateral consequence it was a punitive and therefore this court adopted that and determined for other reasons as well but that was one of the primary reasons that this sex offender registration scheme are being subjected to it to not count us custody so because we have a new registration scheme would count as custody for purposes of behavior that i'm aware of however the circuits that have examined the sex offender registration legislation none of them have looked at a scheme that is like the one in ohio except the tenth circuit and i will address the tenth circuit's decision in a moment but now i'm asking the court here to do something that other circuits haven't done but it is the right thing to do and it is consistent with the law that the supreme court has handed down and order there is no formula for what custody means can i clarify your your point there is no no court in the country and then follow up to that argument do you is there another scheme in the country that you would say is analogous to ohio yes i should think ohio was unique that is correct there is one in michigan that the government has conceded as substantially similar to what some places in ohio and this court has been a substantial amount of time examining that registration scheme and has had a lot to say about it and over the snyder this court did an exhaustive analysis of the michigan scheme which is much like what's happening in ohio and made a determination that that registration scheme was punitive i understand that the issue that's before the court today was not before the court and but there is a lot of analysis in that case that is instructive here the issue of custody as i said is not determined by a formula there are a couple considerations that the courts look at whether there is a significant restraint on an individual's liberty that is not shared by the public generally and whether it's a collateral consequence of a conviction in this case there are restrictions on the liberty of people who are put under this scheme that are not shared by the public generally the question liberties the question movement according to jones  understand that the limitation on a sex offender in ohio somebody convicted as your client was is that you can't live near a school primarily somewhere where there's children ok is there any other restriction on movement well there's a couple so she has to report in person every morning use i'm not asking about reporting i don't think well that restricts her movement she can't be where she wants to be when she has to go report so that's a restriction on her movement or her freedom also within one within three days of leaving the county she has to again show up at the sheriff's office a place where she doesn't want to be a restriction on her movement and retirements correct or the restrictions  guess the question that we wrestle with yes they are restrictions there's also the facts that are in place because of this legislation that restrict her movement she's been banned from her child's school and i would submit to the court that that's due to the public dissemination were prior meant the collection requirements that then they distribute to all the school principals and administrators and many people and as a result of that she's now been told that she can attend pick up her daughter from school attend events or be involved in parenting and that way so those are all restrictions on her freedom that other people do not suffer was that that was and then the earlier low about that she could whole sort of thing well the the resident see requirement was not in the previous legislation so she's not permitted to establish a residence or occupier residence within a thousand feet of a school that's new the requirement that she report that she report to the sheriff and the place where she works and goes to school is an addition so they've expanded it from just in the county where you live now you have to report where you work and go to school what that's in a different county  and the require the restriction on travel has been expanded in addition it's clear that this is not a collateral consequence the supreme court in williams revisited the decision and looked at the legislation that court has to announce it at sentencing and place this designation on the offender at the sentencing court fails to do that the restrictions don't apply so this is simply not like losing your voting rights where the right not to own a firearm or losing your right to have a driver's license those things that operate terrorized by operation of law those are collateral consequences this is part of the punishment and the supreme court has indicated that we stay within the control of the sentencing court because the court have any discretion must the court simply order this registration by virtue of the statutory requirement the court is required to order it but the court is required to order it and so there's cases in ohio where the court has failed to do that and the offender is not subject to the restrictions i also would like the court to consider the cases that have analyzed what is custody and terms of parole and probation this court made a pretty definitive determination and versus knight or that the sex offender registration scheme in us your client she is not permitted there are places she's not permitted to go as a result of this we're still we're still agreeing that that is within this around the school within and around the school or any other restrictions are far more onerous than a probation or a parole eat also isn't told you know where they can go they're just on probation they may have to report occasionally the restrictions for probation and parole vary quite a bit but the courts do unanimously term and that if you're on probation or parole you're in custody this is a designation requirements and restrictions that my client is subjected to for the rest of her life never be removed what happens if if she's caught within a thousand feet of of a school automatically this condition and put her in jail or she tried separately for that offense if she establishes a residence or occupies a residence within a thousand feet of a school then she is subjected to a criminal charge that subjects her to three years in prison so she would have due process rights much less if a probationer is violated they get to go before a court and they have due process rights would she have gone before judge or had but she would have the right to a child but reparative fish write a separate offense correct but her freedom her continued freedom in the community is contingent on her your argument here and maybe you can tell us why i think you situation and the tenth circuit is different from ohio's so that the the tenth circuit case is out there and and in looking at it here's what i have to say about it number one it is not binding on this court and number two the issue that was the decision that was issued was not published and the analysis was absent they made the decision and the two paragraphs up as part of a larger case where they just said oh this is  clatter of consequence they cited previous cases that have made that determination and they didn't analyze exactly what was happening so this court in dover cis night or really looked at the issue and said here's what's really happening let's be honest about what the effect of this really is and this court did some true analysis the tenth circuit did not address the specifics that all ok thank you your have your good morning your honor my name is scott chris i'm here on behalf of the our attorney general as judge cook pointed out already and we pointed out in our brief there is no circuit case that   reported or on reported that we could find not a single federal case anywhere that has examined a scheme that has found that it is custody for the purposes of the abuse corpus the closest that i could case the court said that the petitioner had to report in person every ninety days had to reregister every time they change their address their employment got a new car i got a new e mail address the petition couldn't adopt his own stepson couldn't go to a stepson school he was not permitted to travel to canada for a honeymoon don't know what that's about and had to notify authorities if he was leaving the state for more than obviously you are at the beck and call of your probation parole officer twenty four hours a day he could call you and say come and report and you have to report there's certainly no nothing like this with the registration s because the sentence has already expired that's the main difference you can draw all the the comparisons you want between probation and parole and a registration scheme like this but the key difference is if you're on parole or you're on probation you have a sentence hanging over you you have some term of years left to serve the state if you mess up on probation or parole that's not the case here as you indicated as her answer indicated if you mess up in on the ridge gratian scheme you're subject to a further criminal trial but that's a whole new set of due process that you have to go through in order for the state to convict you  that that was i want to circle back because i think counsel told the court that a violation of establishing a residence within the range of a school in violation that violation i thought that counsel told the court that that was that you're subject to criminal sanctions therefore and it looked to me like they'll hire revised code established inju f that's your reading of the of the revised code then i'll trust you on that i do not know what the penalties are for the various violations that could occur in the registration s as to the restriction that she cannot go to your daughter's school that is also not in the code that's that's between her and her daughter's school the ohio administrative  code allows for a school to report to the sheriff that somebody who is on the registration has been at the school or is in the area of the school but there's no mechanism for a ban or anything like that so i can't speak to what's going on in that situation but it is far as i could tell that is not in the revised code and not part of the restrictions i don't want to take up too much time  repeating myself i'll just say again there is no case that supports the proposition that custody is present here i'll go to him but i will say this with respect to leslie which we rely on it might have an ex post facto claim that he might want to pursue but that didn't lead judge clay to for instance dissent and say hey wait a minute this is punitive therefore it's custody now what he said was what do you think scully with twenty nine fifty point you know thirty four b with regard to the issue of the injunction and there are the remedy for violating the residency restriction i'll defer to the court's reading of the statute was my understanding that the injunction was the remit he in the previous statute i thought that in the new statute that is something that could give rise to a charge for  violating the the duties to register but if the court is reading that differently i defer to the court with regard to the other issues though i have to draw the core pack to joe versus snyder the court made some findings about the michigan scheme that are controlling law here and they analogized the reporting requirements than every ninety days and three places and the restrictions on how and when you can travel travel is contingent on showing up at the sheriff's office and telling them you're a sex offender and the residency restrictions there was a quote they said these are direct restraints on personal conduct that is the this court's determination about those restrictions and obligations and the court specifically analogized those requirements to probation number parole restrictions on where you can live telling someone they have to report in person and you can be punished for these things by imprisonment those are all things that were in the do case and that this court specifically said are just like probation and parole and made a finding that in some cases they're worse than probation and parole so if probation and parole is custody then being under a sex offender designation is certainly custody this is something that you can never get out of and your freedom in the community your ability to be in the community and out of a jail cell as contingent upon your compliance with these restrictions that are part of the criminal sentence and so i understand that for we have said that no this is just the collateral consequences is just like losing your right to vote but i think it's time that we look at the reality of what is happening to people and say that sex offender registration laws have a vault over time and they continue to be more expansive and more intrusive and the facts of this particular case my client is basically a status offender she was a allege that she had conceptual consensual sex with a person who was allowed to have consensual sex with her  there is no allegation of for child rape or anything like that the only reason my client was charged with a crime is because she happened to be a teacher or this person went to school and so now for the rest of her life she has to show up to the sheriff's office in three places potentially and now it's hi i'm a sex offender i'm here and the restrictions that that puts on someone's life are real and i don't think that we can ignore them because well they're there in tangible consequences this court talked about the michigan scheme being akin to banishment and that is what happens we are relegating these people to certain segments of society and telling them that they have to do what we say or we're going to put them in prison that is the definition of custody those are restraints and restrictions that are not suffered by the population generally these are not collateral consequences and it's time for this court to acknowledge that fact the wilson case is not analogous to the restrictions here they have a lot of the same things but they're missing some important ones there was no residency restriction and will said so the court when they're looking at virginia did not have an analogous statute there was no requirement that the offender register where they go to school or where they work and the breath of the community notifications were far more far less than what is required by the ohio ohio statute when the government conceded in its brief that michigan scheme and the ohio scheme are substantially similar i believe that puts  dover snyder in play and the findings that that court made are significant and important and i urge the court to apply those findings to the case bar and make the determination that sexual registration