[Cite as State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424.] 

THE STATE OF OHIO, APPELLEE, v. BODYKE ET AL., APPELLANTS. 

[Cite as State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424.] 

Criminal law — R.C. Chapter 2950 — Sex offenders — R.C. 2950.031 and 

2950.032 violate separation of powers by requiring executive branch to 

reclassify sex offenders already classified by court order — Only appellate 

courts are constitutionally permitted to review or modify court judgments 

— Executive branch may not reopen final judgments — Stare decisis — 

Doctrine not controlling in cases presenting constitutional question — 

R.C. 2950.031 and 2950.032 severed. 

(No. 2008-2502 — Submitted November 4, 2009 — Decided June 3, 2010.) 

APPEAL from the Court of Appeals for Huron County, Nos. H-07-040, H-07-041, 

and H-07-042, 2008-Ohio-6387. 

___________________ 

SYLLABUS OF THE COURT

1. The power to review and affirm, modify, or reverse other courts’ judgments is 

strictly limited to appellate courts. (Section 3(B)(2), Article IV, Ohio 

Constitution, applied.) 

2. R.C. 2950.031 and 2950.032, which require the attorney general to reclassify 

sex offenders who have already been classified by court order under 

former law, impermissibly instruct the executive branch to review past 

decisions of the judicial branch and thereby violate the separation-ofpowers doctrine. 

3. R.C. 2950.031 and 2950.032, which require the attorney general to reclassify 

sex offenders whose classifications have already been adjudicated by a 

court and made the subject of a final order, violate the separation-ofpowers doctrine by requiring the opening of final judgments. 
SUPREME COURT OF OHIO

2 

___________________ 

 O’CONNOR, J. 

{¶ 1} In this appeal,1 we decide the constitutionality of the current version 

of R.C. Chapter 2950, as amended by 2007 Am.Sub.S.B. No. 10 (“the Adam 

Walsh Act” or “the AWA”), as those provisions apply to sex offenders whose 

cases were adjudicated prior to its enactment. 

{¶ 2} Although we discharge our duty with great respect for the role of the 

legislature, Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 159, 83 S.Ct. 

554, 9 L.Ed.2d 644, for the reasons that follow we are compelled to find that R.C. 

2950.031 and 2950.032, the reclassification provisions in the AWA, are 

unconstitutional because they violate the separation-of-powers doctrine. As a 

remedy, we strike R.C. 2950.031 and 2950.032, hold that the reclassifications of 

sex offenders by the attorney general are invalid, and reinstate the prior judicial 

classifications of sex offenders. 

I. Relevant Background 

A. R.C. Chapter 2950 

{¶ 3} R.C. Chapter 2950, Ohio’s law governing the registration and 

classification of sex offenders and the ensuing community-notification 

requirements, has evolved substantially since its inception in 1963. See former 

R.C. Chapter 2950, 130 Ohio Laws 669. The original version of the statute was 

 

1. Christian N. Bodyke is an appellant in one of three appeals consolidated by the Sixth District. 

Bodyke was convicted of sexual battery in 1999. The others, David Schwab and Gerald Phillips, 

were found guilty of attempted rape in 1999 and gross sexual imposition and sexual battery in 

1993, respectively. All of the appellants were classified initially under Megan’s Law and 

reclassified according to the AWA. Bodyke, Schwab, and Phillips assert six propositions of law. 

Those propositions aver that the application of the AWA to offenders whose crimes were 

committed before the AWA’s effective dates violates (1) the Ex Post Facto Clause of the federal 

constitution, (2) the Retroactivity Clause of the Ohio Constitution, (3) the separation-of-powers 

doctrine embodied in the Ohio Constitution, and (4) the Double Jeopardy Clause of the state and 

federal constitutions. They also assert that the AWA, as applied to sex offenders whose cases 

were adjudicated under the provisions of Megan’s Law, violates due process and constitutional 

protections against cruel and unusual punishment and against impairment of contracts. 
January Term, 2010 

3 

seldom used, Sears v. State, Clermont App. No. CA2008-07-068, 2009-Ohio3541, ¶23, and it existed without amendment for three decades. 

{¶ 4} In 1994, however, a convicted sex offender in New Jersey abducted, 

raped, and killed a neighbor’s young child, Megan Kanka. See State v. Williams 

(2000), 88 Ohio St.3d 513, 516, 728 N.E.2d 342; State v. Cook (1998), 83 Ohio 

St.3d 404, 405, 700 N.E.2d 570. In the wake of that notorious crime, New Jersey 

gained national recognition by enacting a law requiring registration of sex 

offenders and notification to the community of the offender’s presence. The law 

became known as “Megan’s Law.” Wallace v. State (Ind.2009), 905 N.E.2d 371, 

374. The constitutionality of the New Jersey legislation was upheld by the New 

Jersey Supreme Court in Doe v. Poritz (1995), 142 N.J. 1, 662 A.2d 367. 

{¶ 5} Federal legislation followed later that year when Congress enacted 

the Jacob Wetterling Crimes Against Children and Sexually Violent Offender 

Registration Act, Section 14071, Title 42, U.S.Code (“the Jacob Wetterling Act”). 

The Jacob Wetterling Act focused on requiring states to implement a registry of 

sex offenders and those who commit crimes against children. People v. Cintron

(2006), 13 Misc.3d 833, 836, 827 N.Y.S.2d 445, fn. 6. Two years after its 

enactment, the Act was amended to require that states add community-notification 

provisions. Id. The Jacob Wetterling Act then became better known as the 

federal “Megan’s Law.” Id. 

{¶ 6} The federal Megan’s Law mandates that the states adopt registration 

and community-notification provisions governing sex offenders or face the loss of 

federal crime-control funds. Section 14071, Title 42, U.S.Code. The General 

Assembly enacted Ohio’s version of Megan’s Law in 1996. Am.Sub.H.B. No. 

180, 146 Ohio Laws, Part II, 2560, 2601.2

 

 

2. Although all of the states enacted some form of sex-offender legislation in order to comply 

with the federal Megan’s Law, the breadth of the registration and notification provisions varied 

from state to state. Sex Offender Treatment in the United States: The Current Climate and an 

Unexpected Opportunity for Change (2010), 84 Tulane L.Rev. 729, 731. 
SUPREME COURT OF OHIO

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1. Ohio’s Megan’s Law 

{¶ 7} Megan’s Law repealed prior versions of R.C. Chapter 2950 and 

created Ohio’s first comprehensive registration and classification system for sex 

offenders. 146 Ohio Laws, Part II, 2560. In order to accomplish its goals, Ohio’s 

Megan’s Law provided for offender registration, classification, and community 

notification. Cook, 83 Ohio St.3d at 407, 700 N.E.2d 570. 

{¶ 8} In 1997, we unanimously upheld the application of Megan’s Law 

over retroactivity and ex post facto claims.3

 State v. Cook , 83 Ohio St.3d 404, 

700 N.E.2d 570. 

{¶ 9} After Cook, we addressed constitutional challenges to Megan’s Law 

based on theories other than ex post facto and retroactivity. We rejected, 

unanimously, the suggestions that Megan’s Law impermissibly intruded on the 

individual’s rights to maintain privacy, to acquire property, to pursue an 

occupation, and to maintain a favorable reputation. Williams, 88 Ohio St.3d at 

524-527, 728 N.E.2d 342. We also rejected arguments based on double jeopardy, 

bill of attainder, equal protection, and vagueness. Id. at 528-534. 

{¶ 10} The following year, we were confronted with a separation-ofpowers argument in State v. Thompson (2001), 92 Ohio St.3d 584, 752 N.E.2d 

276. We rejected it unanimously. 

{¶ 11} Thompson addressed whether former R.C. 2950.09(B)(2) violated 

“the separation-of-powers doctrine because it encroache[d] upon the judiciary’s 

fact-finding authority.” Id. at 585. More specifically, we addressed the language 

 

3. In 2003, the United States Supreme Court confronted an Alaskan statutory scheme very similar 

to Megan’s Law. The high court concluded that the Alaskan law did not violate the Ex Post Facto 

Clause. Smith v. Doe (2003), 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164. In so holding, the 

court applied the factors from Kennedy v. Mendoza-Martinez, 372 U.S. at 159, 83 S.Ct. 554, 9 

L.Ed.2d 644, as we did in Cook, and drew the same conclusion – that the Ex Post Facto Clause 

does not prohibit states from retroactively requiring sex offenders to register periodically with 

local law enforcement or from disseminating to the community the offender’s name, address, 

photograph, and other personal information. 
January Term, 2010 

5 

in former R.C. 2950.09(B)(2) that required a judge to consider certain factors 

before determining whether an offender was a sexual predator. 

{¶ 12} Our conclusion that the separation-of-powers doctrine was not 

violated turned on our view that the statute did not divest the court of its factfinding powers. Id., 92 Ohio St.3d at 587-588, 752 N.E.2d 276. We observed 

that the statutory factors provided an important framework that assisted judges in 

making the sexual-predator determination and that the factors, as guidelines, 

“provide consistency in the reasoning process.” Id. at 587. But more importantly, 

we recognized that the guidelines did not control the judge’s discretion or require 

a judge to assign a particular weight to certain factors. Thus, we found no 

improper interference with the judge’s fact-finding powers. 

{¶ 13} We further held that the factors themselves were nonexhaustive, 

because the statute directed the judge to “consider all relevant factors, including, 

but not limited to,” the statutory factors. (Emphasis deleted.) Id. at 588. Thus, 

we concluded, the statute did not violate the separation-of-powers doctrine, 

because the judge retained discretion to consider any relevant evidence and to 

determine what weight, if any, to assign to that evidence. Id. 

{¶ 14} Ten years after our decision in Cook, we again addressed Megan’s 

Law in State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110. In 

that case, a convicted rapist classified as a sexual predator challenged the 

constitutionality of the amendments enacted in Am.Sub.S.B. No. 5 (“S.B. 5”), 150 

Ohio Laws, Part IV, 6558, 6687-6702 (eff. July 31, 2003). The claims in 

Ferguson renewed the challenge against the retroactive application of the 

amended requirements. 

{¶ 15} Despite the significant changes wrought by S.B. 5, we upheld the 

S.B. 5 amendments. In so doing, we rejected Ferguson’s assertions that the 

amendments violated the Ex Post Facto Clause of the United States Constitution 

(Section 10, Article I) and the retroactivity provision in Section 28, Article II of 
SUPREME COURT OF OHIO

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the Ohio Constitution. We relied on our decision in Cook, the Supreme Court’s 

decision in Smith v. Doe (2003), 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164,

and other state courts’ decisions to find that Megan’s Law remained a remedial 

statute. Ferguson at ¶ 29-40. Ferguson, however, was not unanimous. See also 

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264 (holding 

that an appellate court must review a trial court’s determination in a sex-offenderclassification hearing under the civil manifest-weight-of-the-evidence standard). 

{¶ 16} The dissent in Ferguson criticized the majority’s reliance on Cook: 

“R.C. Chapter 2950 has been amended [since Cook]. The simple registration 

process and notification procedures are now different from those considered in 

Cook and in [Williams, 88 Ohio St.3d 513, 2000-Ohio-428, 728 N.E.2d 342]. 

R.C. Chapter 2950 has been transformed from remedial to punitive * * *.” 

Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 45 (Lanzinger, 

J., dissenting). More specifically, the dissent explained that, since Cook, the 

“sexual predator” label became permanent, the registration requirements were 

made more demanding, the community-notification and residency-restriction 

provisions were made more extensive, and sheriffs’ authority was expanded to 

include the power to obtain landlord verification that the offender lived at a 

registered address. Ferguson at ¶ 46. 

{¶ 17} Even as debate over the S.B. 5 amendments was taking place here, 

however, the General Assembly was reviewing the law and enacting a new 

scheme, the Adam Walsh Act, R.C. Chapter 2950. That act, not Megan’s Law 

and its amendments, forms the basis of this appeal. 

2. Ohio’s Adam Walsh Act 

{¶ 18} In 2006, Congress passed the Adam Walsh Child Protection and 

Safety Act (“Adam Walsh Act”), P.L. No. 109-248, 120 Stat. 587, codified at 

Section 16901 et seq., Title 42, U.S.Code. The Act created national standards for 

sex-offender registration, community notification, and classification. It divides 
January Term, 2010 

7 

sex offenders into three categories or “tiers” – Tier I, Tier II, and Tier III – based 

solely on the crime committed. Section 16911. The duration of the offender’s 

obligation to update his personal information for the registry depends on his tier 

classification. Section 16915. 

{¶ 19} Section 16912(a) directs every jurisdiction to maintain a sexoffender registry conforming to the requirements of the Act. And to ensure 

compliance, Congress directed that states that did not adopt the Adam Walsh Act 

risked losing ten percent of certain federal crime-control funds that would 

otherwise be allocated to them. Section 16925(a). 

{¶ 20} The following year, the General Assembly enacted 2007 

Am.Sub.S.B. No. 10.4

 S.B. 10 repealed Megan’s Law and replaced it with a new, 

retroactive scheme that includes the tier system required by Congress. R.C. 

Chapter 2950. 

{¶ 21} The former categories of sexually oriented offender, habitual sex 

offender, and sexual predator no longer exist, nor is the court required to hold 

classification hearings as before. Instead, offenders are classified as Tier I, Tier 

II, or Tier III sex offenders (or child-victim offenders) based solely on the 

offender’s offense. R.C. 2950.01. Specified officials are required to notify 

existing offenders of their duties and new tier classification. R.C. 2950.03, 

2950.031, and 2950.032. 

{¶ 22} Significantly for our purposes here, under the AWA judges no 

longer have discretion to determine which classification best fits the offender. Id. 

 

4. Ohio is the only state to have complied with the mandate, however. Greg Bluestein (December 

1, 2009), “Ohio lone state to adopt sex-offender rules,” in Canton Rep.com, available at 

http://www.cantonrep.com/ohio/x2072228737/Ohio-lone-state-to-adopt-sex-offender-rules (last 

visited Mar. 22, 2010). The deadline for compliance has been extended from July 2009 to July 

2010, but it appears that many states will still be unable, or unwilling, to comply. Id. For many 

states, the costs of compliance with the Act will far outweigh the ten percent reduction in funding. 

For example, it has been estimated that the cost for Illinois to comply with the Act in the first year 

would be $21,000,000 but that it will lose less than $1,000,000 if it does not. See Liz Winiarski, 

Facing the Compliance Deadline for the Adam Walsh Child Protection and Safety Act, States are 

Weighing all the Costs (2009), 14 Pub.Interest L.Rep. 192, 193. 
SUPREME COURT OF OHIO

8 

Instead, a few months before the AWA’s effective date, the General Assembly 

directed the attorney general to reclassify existing offenders. R.C. 2950.031(A) 

and 2950.032(A)(1). Offenders who had registered before December 1, 2007, 

were to be reclassified as Tier I, II, or III sex offenders according to the new 

statutes. Id. Tiers are assigned solely by reference to the offense. See R.C. 

2950.01(E), (F), and (G). The entire reclassification process is administered by 

the attorney general, with no involvement by any court. There is no 

individualized assessment. No consideration is given to any of the other factors 

employed previously in classification hearings held pursuant to Megan’s Law. Id. 

As a result, the trial court is stripped of any power to engage in independent factfinding to determine an offender’s likelihood of recidivism. Expert testimony is 

no longer presented; the offender’s criminal and social history are no longer 

relevant.5

{¶ 23} After tier classification is completed, the offender is required to 

register according to the classification. R.C. 2950.04(A)(1). The registration 

requirements under the AWA vary depending on the tier in which the offender is 

classified. R.C. 2950.06(B) (frequency of duty to verify personal information 

differs depending on tier); R.C. 2950.07 (duration of duty to comply with 

registration/verification requirements depends on tier). 

 

5. {¶ a} In State v. Eppinger (2001), 91 Ohio St.3d 158, 743 N.E.2d 881, we emphasized the 

importance of the classification hearing in assessing each offender on an individualized basis, 

avoiding wholesale labeling of offenders as sexual predators based only on a conviction, and 

advancing the purpose of the legislation, which was to protect the public: 

 {¶ b} “If we were to adjudicate all sexual offenders as sexual predators, we run the risk of 

‘being flooded with a number of persons who may or may not deserve to be classified as high-risk 

individuals, with the consequence of diluting both the purpose behind and the credibility of the 

law.’” Id. at 165, quoting State v. Thompson (1999), 140 Ohio App.3d 638, 647, 748 N.E.2d 

1144. 

 {¶ c} We further opined that “[o]ne sexually oriented offense is not a clear predictor of 

whether that person is likely to engage in the future in one or more sexually oriented offenses, 

particularly if the offender is not a pedophile. Thus, we recognize that one sexually oriented 

conviction, without more, may not predict future behavior.” Id. at 162. 
January Term, 2010 

9 

{¶ 24} Under Megan’s Law, if an offender was classified at the lowest risk 

level, i.e., as a sexually oriented offender, he was required to register annually for 

a period of ten years. Former R.C. 2950.07(B)(3) and 2950.06(B)(2), 146 Ohio 

Laws, Part II, 2617, 2613. No community notification followed. Under the 

AWA, although there is still no community notification for the lowest-risk 

offenders, i.e., offenders classified into Tier I, those offenders must verify their 

personal information annually for 15 years rather than the ten years required 

under Megan’s Law. R.C. 2950.07(B)(3). 

{¶ 25} Under Megan’s Law, an offender who posed an intermediate risk, 

i.e., less than a sexual predator but more than a sexually oriented offender, was 

labeled a habitual sexual offender. See former R.C. 2950.01(B), 146 Ohio Laws, 

Part II, 2601. Habitual sexual offenders were required to verify their personal 

information annually for 20 years, former R.C. 2950.07(B)(2) and 2950.06(B)(2), 

146 Ohio Laws, Part II, 2617, 2613, and community notification was required 

only if the judge deemed it appropriate. Former R.C. 2950.11(A) and (F), 146 

Ohio Laws, Part II, 2627, 2630. In the AWA scheme, the intermediate-risk 

offender is placed in Tier II. Tier II offenders must verify every 180 days for 25 

years, R.C. 2950.07(B)(2) and 2950.06(B)(2), but community notification is not 

required. R.C. 2950.11(F) (community notification limited to Tier III offenders). 

{¶ 26} The sexual-predator classification was the highest-risk offender 

under Megan’s Law. Sexual predators were required to register every 90 days for 

life. Former R.C. 2950.06(B)(1) and 2950.07(B)(1), 146 Ohio Laws, Part II, 2613 

and 2616. Community notification was required. Former R.C. 2950.11(A), 146 

Ohio Laws, Part II, 2627. Under the AWA, Tier III offenders have the same 

obligation to verify their personal information as sexual predators, R.C. 

2950.06(B)(3) (every 90 days) and 2950.07(B)(1) (for life), and community 

notification is required. R.C. 2950.11(A). However, the scope of registration is 

expanded greatly. 
SUPREME COURT OF OHIO

10 

{¶ 27} Megan’s Law required an offender to register with the sheriff in the 

county in which he resided. Former R.C. 2950.04(A), 146 Ohio Laws, Part II, 

2609. Pursuant to the AWA, the offender must register with the sheriff in the 

county in which he lives, the county in which he attends school, the county in 

which he is employed, any county in which he is domiciled temporarily for more 

than three days, and even a county in another state if he works or attends school 

there. R.C. 2950.04(A)(2)(a) through (e). When he registers, he must provide his 

full name and any aliases as well as his date of birth, social security number, 

address, the name and address of his employer and school, the license plate of any 

motor vehicle he owns or operates as part of his employment, his driver’s license 

number, any professional or occupational registration or license, any e-mail 

address, and all Internet identifiers or telephone numbers registered to him. R.C. 

2950.04(C). 

{¶ 28} Similarly, the AWA expands community-notification requirements. 

In the new scheme, the sheriff gives notice of a Tier III offender’s name, address, 

and conviction to all residents within 1,000 feet of the offender’s residence. R.C. 

2950.11(A)(1)(a). If the offender lives in a multiple-unit building, all residents 

who share a common hallway with the offender must be notified. R.C. 

2950.11(A)(1)(b). The AWA also forbids all sex offenders, including those who 

have not offended against children, from living within 1,000 feet of a school, 

preschool, or child day-care facility. R.C. 2950.034(A).6

B. The Appeal Before the Court 

{¶ 29} On October 18, 1999, appellant Bodyke entered an agreed plea of 

no contest to one count of breaking and entering in violation of R.C. 2911.13(A) 

and one count of sexual battery in violation of R.C. 2907.03(A)(3). Two months 

 

6. This court held that this prohibition cannot constitutionally be applied to an offender who 

bought his home and committed his offense before the effective date of the statute. Hyle v. Porter, 

117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, syllabus. 
January Term, 2010 

11 

later, the trial judge sentenced him to concurrent sentences of six months’ 

imprisonment for breaking and entering and two years’ imprisonment for sexual 

battery. In addition, relying on the version of R.C. 2950.01 that was in effect at 

that time, he was classified as a sexually oriented offender, the lowest level of 

offender under Megan’s Law. As a sexually oriented offender, Bodyke was 

required to register with the county sheriff every year for ten years. He was not 

subject to the community-notification provisions, however. 

{¶ 30} In November 2007, eight years after Bodyke’s no-contest plea and 

almost five years after being released from prison, the attorney general, acting 

pursuant to the reclassification provisions in the AWA, notified Bodyke that he 

would be reclassified. Bodyke was automatically labeled a Tier III offender, 

which requires him to personally register with the local sheriff every 90 days for 

the duration of his life. Further, Bodyke is now subject to community-notification 

provisions. 

{¶ 31} He appealed to the Sixth District Court of Appeals, which affirmed 

unanimously. We accepted his discretionary appeal, 121 Ohio St.3d 1438, 2009-

Ohio-1638, 903 N.E.2d 1222, and now reverse. 

II. Analysis 

A. Stare Decisis 

{¶ 32} The parties and amici curiae repeatedly urge that Cook and 

Ferguson compel a particular result here, and some suggest that the doctrine of 

stare decisis controls the outcome. As we have described here, this court has 

repeatedly upheld Megan’s Law as constitutional over an array of challenges. But 

those decisions compel no particular result in the cases before us. 

{¶ 33} Initially, we reiterate an important but often overlooked aspect of 

our law on stare decisis. We have held that “stare decisis applies to rulings 

rendered in regard to specific statutes, [but] it is limited to circumstances ‘where 

the facts of a subsequent case are substantially the same as a former case.’ ” 
SUPREME COURT OF OHIO

12 

Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 

420, ¶ 23, quoting Rocky River v. State Emp. Relations Bd. (1989), 43 Ohio St.3d 

1, 5, 539 N.E.2d 103. Thus, as a threshold question, we must determine whether 

the statute and facts presented today are the same as those presented in precedent. 

We are persuaded that the AWA is substantially different from Megan’s Law. 

Cook and Ferguson, the cases cited as dispositive of this appeal, did not present a 

separation-of-powers challenge. And Thompson, which did, involved a statutory 

provision not implicated in this appeal because Thompson was concerned only

with former R.C. 2950.09(B)(2), the provision listing factors a judge was required 

to consider in determining whether an offender is a sexual predator. 92 Ohio 

St.3d at 584, 752 N.E.2d 276 (“The sole issue before this court is whether R.C. 

2950.09 violates the separation-of-powers doctrine because it encroaches upon the 

judiciary’s fact-finding authority. We find that it does not”). Nothing like that 

provision can be found in the AWA. 

{¶ 34} On those bases alone, we would not be obliged to apply those 

decisions to this case. But more importantly for our purposes here, we believe 

that there is a more vital and compelling limitation on the doctrine as it has 

developed in Ohio: its inapplicability to constitutional claims. 

{¶ 35} Our decision in Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 

N.E.2d 1256, established the test for departing from precedent. But Galatis arose 

in the context of insurance and contract law, not constitutional law. That 

difference is significant, as we made clear in our decision in Rocky River, 43 Ohio 

St.3d at 6-10, 539 N.E.2d 103. In that case, we acknowledged that stare decisis 

“does not apply with the same force and effect when constitutional interpretation 

is at issue.” (Emphasis added.) Id. 

{¶ 36} We concluded in Rocky River by noting that the reconsideration of 

past decisions in the constitutional realm “is not some forbidden aberration. It is, 

in fact, the fulfillment of our constitutional responsibilities * * *.” Id. at 7. 
January Term, 2010 

13 

Nothing in our decision in Galatis suggests otherwise. Rocky River retains its 

vitality, at least insofar as this principle is concerned: “Stare decisis is not

inflexibly applicable to constitutional interpretation.” (Emphasis sic.) Id. at 10. 

See also Lawrence v. Texas (2003), 539 U.S. 558, 577, 123 S.Ct. 2472, 156 

L.Ed.2d 508 (“The doctrine of stare decisis is essential to the respect accorded to 

the judgments of the Court and the stability of the law. It is not, however, an 

inexorable command”). 

{¶ 37} Stare decisis remains a controlling doctrine in cases presenting 

questions on the law of contracts, property, and torts, but it is not controlling in 

cases presenting a constitutional question. Thus, in the instant appeals, stare 

decisis does not compel us to reach the same result we reached in past decisions, 

including Ferguson and Cook. 

{¶ 38} We now proceed with our analysis of the important constitutional 

questions before us. 

B. Separation-of-Powers Doctrine 

{¶ 39} The first, and defining, principle of a free constitutional 

government is the separation of powers. Evans v. State (Del.2005), 872 A.2d 539, 

543. In Kilbourn v. Thompson (1880), 103 U.S. 168, 190-191, 26 L.Ed. 377, the 

United States Supreme Court stated: 

{¶ 40} “It is believed to be one of the chief merits of the American system 

of written constitutional law, that all the powers intrusted to government, whether 

State or national, are divided into the three grand departments, the executive, the 

legislative, and the judicial. That the functions appropriate to each of these 

branches of government shall be vested in a separate body of public servants, and 

that the perfection of the system requires that the lines which separate and divide 

these departments shall be broadly and clearly defined. It is also essential to the 

successful working of this system that the persons intrusted with power in any one 

of these branches shall not be permitted to encroach upon the powers confided to 
SUPREME COURT OF OHIO

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the others, but that each shall by the law of its creation be limited to the exercise 

of the powers appropriate to its own department and no other.” 

{¶ 41} As this court has observed with regard to our own state system of 

government: 

{¶ 42} “While Ohio, unlike other jurisdictions, does not have a 

constitutional provision specifying the concept of separation of powers, this 

doctrine is implicitly embedded in the entire framework of those sections of the 

Ohio Constitution that define the substance and scope of powers granted to the 

three branches of state government.” S. Euclid v. Jemison (1986), 28 Ohio St.3d 

157, 158-159, 28 OBR 250, 503 N.E.2d 136. It “represents the constitutional 

diffusion of power within our tripartite government. The doctrine was a 

deliberate design to secure liberty by simultaneously fostering autonomy and 

comity, as well as interdependence and independence, among the three branches.” 

Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 

114. 

{¶ 43} “ ‘ “[T]he people possessing all governmental power, adopted 

constitutions, completely distributing it to appropriate departments.” Hale v. 

State (1896), 55 Ohio St. 210, 214, 45 N.E. 199, 200. They vested the legislative 

power of the state in the General Assembly (Section 1, Article II, Ohio 

Constitution), the executive power in the Governor (Section 5, Article III, Ohio 

Constitution), and the judicial power in the courts (Section 1, Article IV, Ohio 

Constitution).’ ” Norwood at ¶ 115, quoting State ex rel. Academy of Trial 

Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 462, 715 N.E.2d 1062. 

{¶ 44} “The essential principle underlying the policy of the division of 

powers of government into three departments is that powers properly belonging to 

one of the departments ought not to be directly and completely administered by 

either of the other departments, and further that none of them ought to possess 

directly or indirectly an overruling influence over the others.” State ex rel. Bryant 
January Term, 2010 

15 

v. Akron Metro. Park Dist. of Summit Cty. (1929), 120 Ohio St. 464, 473, 166 

N.E. 407. Thus, the people specified in our Constitution that “[t]he general 

assembly shall [not] * * * exercise any judicial power, not herein expressly 

conferred.” Section 32, Article II, Ohio Constitution. Our decisions reflect these 

principles. 

{¶ 45} We have held that “[t]he administration of justice by the judicial 

branch of the government cannot be impeded by the other branches of the 

government in the exercise of their respective powers.” State ex rel. Johnston v. 

Taulbee (1981), 66 Ohio St.2d 417, 20 O.O.3d 361, 423 N.E.2d 80, paragraph one 

of the syllabus. 

{¶ 46} The judiciary has both the power and the solemn duty to determine 

the constitutionality and validity of acts by other branches of the government and 

to ensure that the boundaries between branches remain intact. State ex rel. Ohio 

Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 462, 715 

N.E.2d 1062. “[J]urists have long understood that they must be wary of any 

usurpation of the powers conferred on the judiciary by constitutional mandate and 

any intrusion upon the courts’ inherent powers * * *.” Norwood, 110 Ohio St.3d 

353, 2006-Ohio-3799, 853 N.E.2d 1115, at ¶ 115. We therefore must “jealously 

guard the judicial power against encroachment from the other two branches of 

government and * * * conscientiously perform our constitutional duties and 

continue our most precious legacy.” Sheward at 467. 

{¶ 47} Our vigilance is not born of self-reverence. Rather, we protect the 

borders separating the three branches in order to ensure the security and harmony 

of the government, Weaver v. Lapsley (1869), 43 Ala. 224, 1869 WL 503, *5, and 

to avoid the evils that would flow from legislative encroachment on our 

independence. Lawson v. Jeffries (1873), 47 Miss. 686, 1873 WL 4108, *8. As 

Montesquieu warned, “ ‘[w]hen the legislative and executive powers are united in 

the same person, or in the same body of magistracy, there can be then no liberty * 
SUPREME COURT OF OHIO

16 

* *. [And] there is no liberty, if the power of judging be not separated from the 

legislative and executive powers.’ ” Evans v. State, 872 A.2d at 544, quoting 

Baron de Montesquieu, The Spirit of the Laws (Thomas Nugent trans., 1949), fn. 

39. See also Clinton v. New York (1998), 524 U.S. 417, 450, 118 S.Ct. 2091, 141 

L.Ed.2d 393 (the separation-of-powers doctrine guards against the threat to liberty 

posed by the concentration of power in a single branch of government). 

{¶ 48} But the doctrine also recognizes that our government is composed 

of equal branches that must work collectively toward a common cause. And in 

doing so, the Constitution permits each branch to have some influence over the 

other branches in the development of the law. For example, the legislative branch 

plays an important and meaningful role in the criminal law by defining offenses 

and assigning punishment, while the judicial branch has its equally important role 

in interpreting those laws. 

{¶ 49} As the Supreme Court has explained, the Madisonian vision of the 

separation of powers did not contemplate three branches operating in isolation, 

each without influence over the others. Rather, the doctrine was designed to 

protect against “ ‘the whole power of one department [being] exercised by the 

same hands which possess the whole power of another department,’ ” in which 

case “ ‘the fundamental principles of a free constitution, are subverted.’ ” 

(Emphases sic.) Mistretta v. United States (1989), 488 U.S. 361, 380-382, 109 

S.Ct. 647, 102 L.Ed.2d 714, quoting The Federalist No. 47 (J. Cooke Ed.1961) 

325-326. The court reminds us of Madison’s belief that “our constitutional 

system imposes upon the Branches a degree of overlapping responsibility, a duty 

of interdependence as well as independence * * *.” Mistretta, id. 

{¶ 50} Navigating the boundaries between interdependence and 

independence of the branches is not always easy. But we have guideposts to aid 

us. 
January Term, 2010 

17 

{¶ 51} Foremost in the analysis, we recognize that the Founders’ design of 

the tripartite model was intended to serve as “ ‘a self-executing safeguard against 

the encroachment or aggrandizement of one branch at the expense of the other.’ ” 

Mistretta, 484 U.S. at 382, 109 S.Ct. 647, 102 L.Ed.2d 714, quoting Buckley v. 

Valeo (1976), 424 U.S. 1, 122, 96 S.Ct. 612, 46 L.Ed.2d 659. The Supreme Court 

counsels that “this concern of encroachment and aggrandizement” animates 

judicial decisions on the separation of powers and arouses vigilance against the “ 

‘hydraulic pressure inherent within each of the separate Branches to exceed the 

outer limits of its power.’ ” Mistretta, 488 U.S. at 382, quoting Immigration & 

Naturalization Serv. v. Chadha (1983), 462 U.S. 919, 951, 103 S.Ct. 2764, 77 

L.Ed.2d 317. The court has “not hesitated to strike down provisions of law that 

either accrete to a single Branch powers more appropriately diffused among 

separate Branches or that undermine the authority and independence of one or 

another coordinate Branch.” Mistretta, id. 

{¶ 52} Thus, while we must respect the fact that the authority to legislate 

is for the General Assembly alone, we must also ensure that its legislative 

prerogative is not unbridled. The General Assembly cannot require the courts “to 

treat as valid laws those which are unconstitutional. If this could be permitted, the 

whole power of the government would at once become absorbed and taken into 

itself by the Legislature.” Bartlett v. State (1905), 73 Ohio St. 54, 58, 75 N.E. 

939. We must be wary that the legislature, in discharging its own duties, does not 

accrete power and encroach on the province of the judiciary. 

{¶ 53} In cases specifically involving the judicial branch, the Supreme 

Court advises vigilance against two dangers: “that the Judicial Branch neither be 

assigned nor allowed ‘tasks that are more properly accomplished by [other] 

branches,’ Morrison v. Olson [1988], 487 U.S. [654] 680-681 [108 S.Ct. 2597, 

101 L.Ed.2d 569], and, second, that no provision of law ‘impermissibly threatens 

the institutional integrity of the Judicial Branch.’ Commodity Futures Trading 
SUPREME COURT OF OHIO

18 

Comm’n. v. Schor [1986], 478 U.S. [833], at 851 [106 S.Ct. 3245, 92 L.Ed.2d 

675].” Mistretta, 488 U.S. at 383, 109 S.Ct. 647, 102 L.Ed.2d 714. Courts also 

condemn legislative encroachments that violate the separation of powers by 

vesting officials in the executive branch with the power to review judicial 

decisions or by commanding that the courts reopen final judgments. Plaut v. 

Spendthrift Farm, Inc. (1995), 514 U.S. 211, 218-219, 115 S.Ct. 1447, 131 

L.Ed.2d 328. 

{¶ 54} With these principles in mind, we turn to a key aspect of the AWA 

– the reclassification scheme. That scheme requires the attorney general to 

reclassify offenders who previously were classified by Ohio judges according to 

the provisions in Megan’s Law and its precursor. 

1. The reclassification provisions 

violate the separation-of-powers doctrine 

{¶ 55} The AWA’s provisions governing the reclassification of sex 

offenders already classified by judges under Megan’s Law violate the separationof-powers doctrine for two related reasons: the reclassification scheme vests the 

executive branch with authority to review judicial decisions, and it interferes with 

the judicial power by requiring the reopening of final judgments. It is well settled 

that a legislature cannot enact laws that revisit a final judgment. We have held for 

over a century that “the Legislature cannot annul, reverse, or modify a judgment 

of a court already rendered.” Bartlett v. State, 73 Ohio St. at 58, 75 N.E. 939. 

See also United States v. O’Grady (1874), 89 U.S. (22 Wall.) 641, 647-648, 22 

L.Ed. 772 (“Judicial jurisdiction implies the power to hear and determine a cause, 

and * * * Congress cannot subject the judgments of the Supreme Court to the reexamination and revision of any other tribunal or any other department of the 

government”). As the Supreme Court of California recently explained, 

“judgments cannot be deprived of their ‘finality’ through statutory conditions not 

in effect when the judicial branch gave its ‘last word’ in the particular case,” 
January Term, 2010 

19 

regardless of the policy behind the legislation. People v. King (2002), 27 Cal.4th 

29, 35, 115 Cal.Rptr.2d 214, 37 P.3d 398, citing Plaut, 514 U.S. at 227, 230, 115 

S.Ct. 1447, 131 L.Ed.2d 328. “A judgment which is final by the laws existing 

when it is rendered cannot constitutionally be made subject to review by a statute 

subsequently enacted * * *.” Gompf v. Wolfinger (1902), 67 Ohio St. 144, 65 

N.E. 878, at paragraph three of the syllabus. See also Plaut, 514 U.S. at 222, 

quoting The Federalist No. 81 (J. Cooke Ed.1961) 545 (“ ‘A legislature without 

exceeding its province cannot reverse a determination once made, in a particular 

case * * *’ ”). The reclassification provisions violate these bedrock principles. 

{¶ 56} The reclassification scheme in the AWA works to “legislatively 

vacate[] the settled and journalized final judgments of the judicial branch of 

government.” State v. Russell, Trumbull App. No. 2008-T-0074, 2009-Ohio5213, ¶ 93 (Grendell, J., concurring in judgment only). The legislative attempt to 

reopen journalized final judgments imposing registration and communitynotification requirements on offenders so that new requirements may be imposed 

suffers the same constitutional infirmity. “It does not matter that the legislature 

has the authority to enact or amend laws requiring sex offenders to register or that 

the current Sex Offender Act does not order the courts to reopen final judgments. 

The fact remains that the General Assembly ‘cannot annul, reverse, or modify a 

judgment of a court already rendered.’ Bartlett, 73 Ohio St. at 58, 75 N.E. 939. 

[Reclassification], as a practical matter, nullifies that part of the court’s [initial 

classification] Judgment [in this case] ordering [the offender] to register for a 

period of ten years as a sexually oriented offender. To assert that the General 

Assembly has authority to create a new system of classification does not solve the 

problem that [the] original classification constituted a final judgment. There is no 

exception to the rule that the final judgments may not be legislatively annuled 

[sic] in situations where the Legislature has enacted new legislation.” State v. 
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Grate, Trumbull App. No. 2008-T-0058, 2009-Ohio-4452, 2009 WL 2710100, 

¶16. 

{¶ 57} Just as “Congress cannot vest review of the decisions of Article III 

courts in officials of the Executive Branch” or interfere with the judiciary by 

“commanding the federal courts to reopen final judgments,” Plaut, 514 U.S. at 

218, 219, 115 S.Ct. 1447, 131 L.Ed.2d 328, the General Assembly cannot vest 

authority in the attorney general to reopen and revise the final decision of a judge 

classifying a sex offender. 

{¶ 58} Our Constitution and case law make undeniably clear that the 

judicial power resides exclusively in the judicial branch. Ex parte Logan Branch 

of State Bank of Ohio (1853), 1 Ohio St. 432, 434. The judicial power of the state 

is vested exclusively in the courts. Section 1, Article IV, Ohio Constitution. The 

power to review and affirm, modify, or reverse other courts’ judgments is strictly 

limited to appellate courts. Section 3(B)(2), Article IV, Ohio Constitution. The 

AWA intrudes on that exclusive role and thus violates the separation-of-powers 

doctrine. 

{¶ 59} Moreover, once the final judgment has been opened, the AWA 

requires that the attorney general “shall determine” the new classifications of 

offenders and delinquent children who were classified by judges under the former 

statutes. R.C. 2950.031(A)(1) and 2950.032(A)(1)(a) and (b). In doing so, it 

violates a second prohibition by assigning to the executive branch the authority to 

revisit a judicial determination. 

{¶ 60} Thus, we conclude that R.C. 2950.031 and 2950.032, which require 

the attorney general to reclassify sex offenders who have already been classified 

by court order under former law, impermissibly instruct the executive branch to 

review past decisions of the judicial branch and thereby violate the separation-ofpowers doctrine. 
January Term, 2010 

21 

{¶ 61} We further conclude that R.C. 2950.031 and 2950.032, which 

require the attorney general to reclassify sex offenders whose classifications have 

already been adjudicated by a court and made the subject of a final order, violate 

the separation-of-powers doctrine by requiring the opening of final judgments. 

{¶ 62} In light of our conclusion that the reclassification provision is 

unconstitutional, we decline to address the remaining constitutional claims at this 

time. The sole remaining salient question is, Which remedy to apply? See State 

v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 84. 

2. Severance is the proper remedy 

{¶ 63} As we did in Foster, “[w]e presume that compliance with the 

United States and Ohio Constitutions is intended and that an entire statute is 

intended to be effective. R.C. 1.47(A) and (B). Furthermore, R.C. 1.50 states, ‘If 

any provision of a section of the Revised Code or the application thereof to any 

person or circumstance is held invalid, the invalidity does not affect other 

provisions or applications of the section or related sections which can be given 

effect without the invalid provision or application, and to this end the provisions 

are severable.’ (Emphasis added.) 

{¶ 64} “When this court holds that a statute is unconstitutional, severance 

may be appropriate. * * * Severance is suitable, however, only where it satisfies 

our well-established standard. * * * 

{¶ 65} “* * * Three questions are to be answered before severance is 

appropriate. ‘ “ ‘(1) Are the constitutional and the unconstitutional parts capable 

of separation so that each may be read and may stand by itself? (2) Is the 

unconstitutional part so connected with the general scope of the whole as to make 

it impossible to give effect to the apparent intention of the Legislature if the 

clause or part is stricken out? (3) Is the insertion of words or terms necessary in 

order to separate the constitutional part from the unconstitutional part, and to give 

effect to the former only?’ ”’ Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 
SUPREME COURT OF OHIO

22 

N.E.2d 470, ¶ 93-95, quoting Geiger v. Geiger (1927), 117 Ohio St. 451, 466, 160 

N.E. 28, quoting State v. Bickford (1913), 28 N.D. 36, 147 N.W. 407, paragraph 

19 of the syllabus. 

{¶ 66} Applying these standards, we conclude that severance of R.C. 

2950.031 and 2950.032, the reclassification provisions in the AWA, is the proper 

remedy. By excising the unconstitutional component, we do not “detract from the 

overriding objectives of the General Assembly,” i.e., to better protect the public 

from the recidivism of sex offenders, and the remainder of the AWA, “which is 

capable of being read and of standing alone, is left in place.” Foster at ¶ 98. We 

therefore hold that R.C. 2950.031 and 2950.032 are severed and, that after 

severance, they may not be enforced. R.C. 2950.031 and 2950.032 may not be 

applied to offenders previously adjudicated by judges under Megan’s Law, and 

the classifications and community-notification and registration orders imposed 

previously by judges are reinstated. 

III. Conclusion 

{¶ 67} For the foregoing reasons, we hold that R.C. 2950.031 and 

2950.032, which require the attorney general to reclassify sex offenders who have 

already been classified by court order under former law, impermissibly instruct 

the executive branch to review past decisions of the judicial branch and thereby 

violate the separation-of-powers doctrine. In addition, R.C. 2950.031 and 

2950.032 violate the separation-of-powers doctrine by requiring the opening of 

final judgments. 

Judgments reversed. 

 LUNDBERG STRATTON and LANZINGER, JJ., concur. 

 PFEIFER, J., concurs in the syllabus and judgment. 

 O’DONNELL, J., concurs in part and dissents in part. 

 CUPP, J., dissents. 

 BROWN, C.J., not participating. 
January Term, 2010 

23 

__________________ 

O’DONNELL, J., concurring in part and dissenting in part. 

{¶ 68} I agree with the lead opinion that 2007 Am.Sub.S.B. No. 10 

violates the separation-of-powers doctrine because the applicable statutes require 

the attorney general, a member of the executive branch of government, to 

reclassify sexual offenders who have been previously classified as either sexually 

oriented offenders, habitual sexual offenders, or sexual predators in accordance 

with a determination by a member of the judicial branch of government. 

However, I dissent from that part of the lead opinion discussing the doctrine of 

stare decisis, because it is wholly dicta and superfluous to the decision of the lead 

opinion that the reclassification provisions of S.B. 10 are unconstitutional. 

Separation of Powers 

{¶ 69} In October 1999, Christian Bodyke entered no-contest pleas to 

breaking and entering and sexual battery. The trial court sentenced him to an 

aggregate two-year term of imprisonment and declared him a sexually oriented 

offender pursuant to statutes in effect at that time. As a sexually oriented 

offender, Bodyke had the duty to register every year for ten years and was not 

subject to community notification. See former R.C. 2950.07(B)(3) and (B)(2), 

146 Ohio Laws, Part II, 2617, 2613; former R.C. 2950.11(A) and (F), id. at 2626-

2627, 2630. 

{¶ 70} In 2006, Congress passed the Adam Walsh Child Protection and 

Safety Act, Section 16901 et seq., Title 42, U.S.Code, and provided financial 

incentives to states for creating similar legislation. See Section 16925(a). Ohio 

became the first state in the nation to follow suit and enacted S.B. 10. 

{¶ 71} In November 2007, Attorney General Marc Dann notified Bodyke 

that he had been reclassified as a Tier III sexual offender pursuant to newly 

enacted S.B. 10. As a result of the Tier III reclassification, Bodyke had new 

registration requirements in that he had to register every 90 days for life and also 
SUPREME COURT OF OHIO

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became subject to community notification. R.C. 2950.06(B)(3), 2950.07(B)(1), 

and 2950.11(A). 

{¶ 72} Former R.C. 2950.09(B)(1) mandated that the trial court conduct a 

hearing and determine whether to adjudicate an offender to be a sexual predator 

or a habitual sexual offender. 146 Ohio Laws, Part II, 2618. Former R.C. 

2950.09(B)(2) and (3) required the court to weigh listed factors to “determine by 

clear and convincing evidence whether the offender is a sexual predator.” See 

146 Ohio Laws, Part II, 2618-2619. If the court found that the offender was not a 

sexual predator, the statute directed it to “specify in the offender’s sentence and 

the judgment of conviction * * * that the offender is not a sexual predator.” 

Former R.C. 2950.09(E) required the court to specify in its entry whether it had 

determined the offender to be a habitual sexual offender. 146 Ohio Laws, Part II, 

2624. 

{¶ 73} This statute thus directed the trial court to determine whether an 

offender was a sexual predator or a habitual sexual offender; by implication, the 

court also determined if an offender was a sexually oriented offender. See State v. 

Cook (1998), 83 Ohio St.3d 404, 407, 700 N.E.2d 570 (“A sexually oriented 

offender is one who has committed a ‘sexually oriented offense’ as that term is 

defined in R.C. 2950.01(D) but who does not fit the description of either habitual 

sex offender or sexual predator”). 

{¶ 74} In Bodyke’s case, the trial court’s judgment of conviction reflects 

that it “adjudicated” Bodyke to be a sexually oriented offender. Therefore, when 

the General Assembly directed the attorney general to reclassify him, it 

impermissibly invaded the province of the judiciary by mandating the reopening 

of a final judgment and by directing that a judicial function be performed by a 

member of the executive branch of government. As we stated in Bartlett v. State

(1905), 73 Ohio St. 54, 58, 75 N.E. 939, “it is well settled that the Legislature 

cannot annul, reverse, or modify a judgment of a court already rendered * * *.” 
January Term, 2010 

25 

See also Gompf v. Wolfinger (1902), 67 Ohio St. 144, 65 N.E. 878, paragraph 

three of the syllabus (“A judgment which is final by the laws existing when it is 

rendered cannot constitutionally be made subject to review by a statute 

subsequently enacted * * *”). 

{¶ 75} Accordingly, I concur with the lead opinion’s holding that S.B. 10 

is unconstitutional in that it requires the attorney general, a member of the 

executive branch of government, to reclassify sex offenders who had previously 

been adjudicated and classified pursuant to a final order of a court. 

Stare Decisis 

{¶ 76} I dissent from the lead opinion, however, regarding its statements 

about the inapplicability of the doctrine of stare decisis to constitutional claims. 

The lead opinion in doing so reaches to decide a question that does not need to be 

resolved at this time. 

{¶ 77} Initially, it should be noted that neither party has specifically 

asserted or briefed the issue of what role stare decisis should play in ruling on 

constitutional questions. We therefore should not raise this question on our own 

initiative, because as we explained in Sizemore v. Smith (1983), 6 Ohio St.3d 330, 

333, 6 OBR 387, 453 N.E.2d 632, fn. 2, “[i]t has long been the policy of this court 

not to address issues not raised by the parties. * * * This court should be hesitant 

to decide such matters for the reason that justice is far better served when it has 

the benefit of briefing, arguing, and lower court consideration before making a 

final determination.” 

{¶ 78} “The premise of our adversarial system is that appellate courts do 

not sit as self-directed boards of legal inquiry and research, but [preside] 

essentially as arbiters of legal questions presented and argued by the parties 

before them.” Carducci v. Regan (C.A.D.C.1983), 714 F.2d 171, 177. 

Proceeding to decide an issue not briefed by the parties creates “ ‘the risk “of an 

improvident or ill-advised opinion, given [the court's] dependence * * * on the 
SUPREME COURT OF OHIO

26 

adversarial process for sharpening the issues for decision.” ’ ” Carbino v. West 

(C.A.Fed.1999), 168 F.3d 32, 35, quoting Headrick v. Rockwell Internatl. Corp. 

(C.A.10, 1994), 24 F.3d 1272, 1278, quoting Herbert v. Natl. Academy of 

Sciences (C.A.D.C.1992), 974 F.2d 192, 196. 

{¶ 79} As the lead opinion admits, we have not before had an opportunity 

to consider the constitutionality of the reclassification provisions of S.B. 10. 

Thus, the lead opinion’s discussion of the role of stare decisis in constitutional 

interpretation is unnecessary to reach its holding that these reclassification 

provisions violate the separation-of-powers doctrine. 

{¶ 80} We usually decline to rule on questions that are not necessary to a 

proper disposition of a case. This restriction exists because “[a] hallmark of 

judicial restraint is to rule only on those cases that present an actual controversy. 

To do otherwise – to simply answer a hypothetical question merely for the sake of 

answering it – would make this court nothing more than an advisory board.” 

Ahmad v. AK Steel Corp., 119 Ohio St.3d 1210, 2008-Ohio-4082, 893 N.E.2d 

1287, ¶ 3 (O’Connor, J., concurring). See also Fortner v. Thomas (1970), 22 Ohio 

St.2d 13, 14, 51 O.O.2d 35, 257 N.E.2d 371 (“It has been long and well 

established that it is the duty of every judicial tribunal to decide actual 

controversies between parties legitimately affected by specific facts and to render 

judgments which can be carried into effect”). 

{¶ 81} Here, there is no actual controversy between the parties over how 

the doctrine of stare decisis should apply when the meaning of the Constitution is 

at issue, and any attempt to unnecessarily decide that question in this case 

contravenes well-settled law that this court will not issue advisory opinions. State 

ex rel. White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d 

508, ¶ 18, citing State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections (2000), 

90 Ohio St.3d 238, 242, 736 N.E.2d 893, and Egan v. Natl. Distillers & Chem. 

Corp. (1986), 25 Ohio St.3d 176, 25 OBR 243, 495 N.E.2d 904, syllabus. 
January Term, 2010 

27 

{¶ 82} To compound the problem, the lead opinion goes too far in 

concluding that the doctrine of stare decisis is inapplicable to constitutional 

claims. We previously stated in Rocky River v. State Emp. Relations Bd. (1989), 

43 Ohio St.3d 1, 5, 539 N.E.2d 103, that stare decisis “does not apply with the 

same force and effect when constitutional interpretation is at issue.” (Emphasis 

added.) But stating that stare decisis applies with less force is a far cry from the 

proposition that it is wholly inapplicable, and it is telling that the lead opinion 

musters no direct authority for this overbroad holding. 

{¶ 83} Fidelity to precedent is “vital to the proper exercise of the judicial 

function * * * [and] ‘is the preferred course because it promotes the evenhanded, 

predictable, and consistent development of legal principles, fosters reliance on 

judicial decisions, and contributes to the actual and perceived integrity of the 

judicial process.’ ” Citizens United v. Fed. Election Comm. (2010), ___ U.S. ___, 

130 S.Ct. 876, 920, ___ L.Ed.2d ___, quoting Payne v. Tennessee (1991), 501 

U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720. 

{¶ 84} Thus, as the Supreme Court of the United States has 

acknowledged, “ ‘even in constitutional cases, the doctrine [of stare decisis] 

carries such persuasive force that we have always required a departure from 

precedent to be supported by some “special justification.” ’ ” Dickerson v. United 

States (2000), 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405, quoting 

United States v. Internatl. Business Machines Corp. (1996), 517 U.S. 843, 856, 

116 S.Ct. 1793, 135 L.Ed.2d 124, quoting Payne at 842 (Souter, J., concurring). 

See also Citizens United, ___ U.S. at ___, 130 S.Ct. at 921, ___ L.Ed.2d ___ (“It 

follows that in the unusual circumstance when fidelity to any particular precedent 

does more to damage this constitutional ideal than to advance it, we must be more 

willing to depart from that precedent”). 

{¶ 85} Moreover, while the lead opinion asserts that the tripartite test for 

departing from precedent that we adopted in Westfield Ins. Co. v. Galatis, 100 
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28 

Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, has no application to 

constitutional questions, the court in Galatis specifically recognized that “the 

United States Supreme Court utilized a similar trifold stare decisis test in 

Lawrence v. Texas (2003), 539 U.S. 558, [574-578] 123 S.Ct. 2472, 2482-2483, 

156 L.Ed.2d 508.” Galatis at ¶ 48, fn. 5. Lawrence involved the question 

whether to overrule Bowers v. Hardwick (1986), 478 U.S. 186, 106 S.Ct. 2841, 92 

L.Ed.2d 140, on the question whether the constitution permits prosecution for 

private acts of homosexual sex. Further, the Supreme Court of the United States 

in Lawrence derived the test from Planned Parenthood of Southeastern 

Pennsylvania v. Casey (1992), 505 U.S. 833, 855, 112 S.Ct. 2791, 120 L.Ed.2d 

674, which itself dealt with the question whether to overrule Roe v. Wade (1973),

410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, on a question of constitutional 

interpretation. 

{¶ 86} My point is not to plot the precise boundaries of the application of 

stare decisis to constitutional questions – that issue is not before the court. 

Rather, I only emphasize that it is by no means clear that the doctrine of stare 

decisis and the Galatis test are wholly inapplicable to cases involving 

constitutional issues. We should await a case presenting concrete facts and 

parties actively litigating and properly briefing the question, which may reveal 

additional arguments for retaining or modifying the Galatis framework in cases of 

constitutional import. 

{¶ 87} Lastly, it is ironic that the lead opinion’s statement on the binding 

power of precedent is itself obiter dictum that compels no obedience. A court is 

not bound to follow its own dicta from a prior case in which the point at issue 

“was not fully debated.” Cent. Virginia Community College v. Katz (2006), 546 

U.S. 356, 363, 126 S.Ct. 990, 163 L.Ed.2d 945; see also Cosgrove v. 

Williamsburg of Cincinnati Mgt. Co., Inc. (1994), 70 Ohio St.3d 281, 284, 638 
January Term, 2010 

29 

N.E.2d 991 (explaining that dicta in a prior case “has no binding effect on this 

court's decision in this case”). 

{¶ 88} As Chief Justice Marshall explained long ago in Cohens v. Virginia 

(1821), 19 U.S. (6 Wheat.) 264, 399, 5 L.Ed. 257, “It is a maxim not to be 

disregarded, that general expressions, in every opinion, are to be taken in 

connection with the case in which those expressions are used. If they go beyond 

the case, they may be respected, but ought not to control the judgment in a 

subsequent suit when the very point is presented for decision.” 

{¶ 89} After all, “[t]he problem with dicta, and a good reason that it 

should not have the force of precedent for later cases, is that when a holding is 

unnecessary to the outcome of a case, it may be made with less care and 

thoroughness than if it were crucial to the outcome.” Bauer v. Garden City

(1987), 163 Mich.App. 562, 571, 414 N.W.2d 891. 

{¶ 90} I am reminded of Chief Justice Roberts’s statement in PDK 

Laboratories, Inc. v. United States Drug Enforcement Adm. (C.A.D.C.2004), 362 

F.3d 786, 799 (Roberts, J., concurring in part and concurring in the judgment), 

where he wrote that the “the cardinal principle of judicial restraint [is that] if it is 

not necessary to decide more, it is necessary not to decide more.” In Meyer v. 

United Parcel Serv., Inc., 122 Ohio St.3d 104, 2009-Ohio-2463, 909 N.E.2d 106, 

¶ 53, we followed this limitation, citing this very quotation. 

{¶ 91} For these reasons, while I agree with the lead opinion that the 

reclassification provisions of S.B. 10 violate the doctrine of the separation of 

powers, I cannot join the lead opinion’s unnecessary ruminations on the doctrine 

of stare decisis. Accordingly, I concur in the judgment that reclassification of 

sexual offenders who have previously been classified by members of the judicial 

branch of government by the Attorney General of Ohio, a member of the 

executive branch of government, violates the separation-of-powers doctrine, but 

dissent from the remainder of the opinion. 
SUPREME COURT OF OHIO

30 

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CUPP, J., dissenting. 

{¶ 92} I respectfully dissent. 

{¶ 93} The lead opinion errs, in my view, in holding that the 

reclassification sections of 2007 Am.Sub.S.B. No. 10 and the consequent change 

in registration and reporting requirements for offenders previously classified 

under prior law violate the separation-of-powers doctrine and, therefore, render 

new sections R.C. 2950.031 and 2950.032 unenforceable. 

{¶ 94} The lead opinion’s premise is that because a sex-offender 

classification under Megan’s Law is included within the defendant’s criminal 

judgment (along with the conviction and sentence for the underlying crime) or in 

a separate entry (e.g., when the sex-offense conviction predated Megan’s Law), 

the classification is a final judgment that the General Assembly may not overturn 

or vacate by legislative mandate. 

{¶ 95} It is true that the General Assembly may not overturn a final 

judgment at law by legislative mandate. Plaut v. Spendthrift Farm, Inc. (1995), 

514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328; Gompf v. Wolfinger (1902), 67 

Ohio St. 144, 152, 65 N.E. 878. But to characterize S.B. 10 as “reopening” a final 

judgment is, I believe, inaccurate. S.B. 10 does not upend the original conviction 

and sentence. They remain in place. 

{¶ 96} Instead, S.B. 10 applies a new, different system of sex-offender 

classification to the fact of the criminal conviction. What this court said in 

describing the then new, different classification system in the amended Megan’s 

Law also holds true for S.B. 10. In State v. Ferguson, 120 Ohio St.3d 7, 2008-

Ohio-4824, 896 N.E.2d 110, ¶ 34, we observed that “an offender’s classification 

as a sexual predator is a collateral consequence of the offender’s criminal acts

rather than a form of punishment per se.” (Emphasis added.) 
January Term, 2010 

31 

{¶ 97} In this case, the manner in which appellants’ sex-offender 

classifications were effected under the prior law does not support the lead 

opinion’s conclusion that they constituted a final judicial judgment. The trial 

court declared appellant Bodyke to be a “sexually oriented offender,” which was 

reflected in his sentencing judgment. Appellant Phillips was convicted and 

sentenced before the effective date of Megan’s Law. After that law went into 

effect, the trial court notified Phillips that it would consider whether to classify 

him as a sexual predator. No hearing was held in Phillips’s case to determine if 

he was a predator, because the state informed the trial court by motion that it did 

not seek to classify Phillips as a sexual predator. Phillips thus remained a 

“sexually oriented offender” by virtue of his criminal conviction. See State v. 

Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, ¶ 16. Appellant 

Schwab was declared to be a habitual sexual offender without communitynotification requirements, which was memorialized in his sentencing entry. The 

sentencing entry for Schwab states that “[t]he Defendant and the State jointly 

stipulated that the Defendant is an habitual Sexual Offender.” 

{¶ 98} As this court has noted, under Megan’s Law, conviction of a 

sexually oriented offense “automatically conferred on [the offender] the status of 

a sexually oriented offender,” and the registration requirement “is mandated by 

law.” State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, ¶ 

16. In Hayden, we rejected the argument that a sexually oriented offender was 

entitled to a hearing to determine his status. As we said in Hayden, in regard to a 

sexually oriented offender under Megan’s Law, “ ‘[t]he trial court cannot 

“determine” anything. It merely engages in the ministerial act of rubber-stamping 

the registration requirement on the offender.’ ” Id. S.B. 10’s classification of sex 

offenders into Tiers I, II, and III, operates in the same way—the tiers are 

automatically assigned by operation of law based on the crime of which the 

offender was convicted and not upon a judicial determination. 
SUPREME COURT OF OHIO

32 

{¶ 99} Thus, for example, reclassification of Bodyke as a Tier III offender 

under S.B. 10 did not change a prior judicial determination that Bodyke was a 

sexually oriented offender under prior law, because that designation attached as a 

matter of law. Reflecting that designation in the sentencing judgment entry 

merely served to give the offender notice of the consequences of his conviction. 

See Smith v. Doe (2003), 538 U.S. 84, 96, 123 S.Ct. 1140, 155 L.Ed.2d 164 

(“Although other methods of notification [of sex offender registration 

requirements] may be available, it is effective to make it part of the plea colloquy 

or the judgment of conviction”). 

{¶ 100} The offender’s classification under prior law, which the lead 

opinion extols as an inviolate final judgment, instead is in effect a statutorily 

mandated notice, involving a matter collateral to the criminal sentence, inserted 

by statutory direction into the criminal sentence as a matter of convenience. 

{¶ 101} It is for good reason, then, that nearly all the courts of appeals to 

have considered a separation-of-powers challenge like the one the lead opinion 

sustains here have rejected such a challenge. See, e.g., Sewell v. State, 181 Ohio 

App. 3d 280, 2009-Ohio-872, 908 N.E.2d 995 (1st Dist.); State v. Barker, 2d Dist. 

No. 22963, 2009-Ohio-2774; Holcomb v. State, 3d Dist. Nos. 8-08-23 to 8-08-26, 

2009-Ohio-782; State v. Randlett, 4th Dist. No. 08CA3046, 2009-Ohio-112; State 

v. Byers, 7th Dist. No. 07 CO 39, 2008-Ohio-5051; State v. Ettenger, 11th Dist. 

No. 2008-L-054, 2009-Ohio-3525; State v. Williams, 12th Dist. No. CA2008-02-

029, 2008-Ohio-6195. But see Ettenger, ¶ 86-96 (Grendell, J., concurring in 

judgment only) (opining that S.B. 10 violates separation of powers by vacating 

final judgment orders). 

{¶ 102} Rather than directing courts to reopen prior judicial judgments 

and empowering an executive officer to rejudge defendants’ sex-offender 

registration, classification, and reporting requirements, S.B. 10 repealed the law 

that required the notice of classification and registration to be inserted in the 
January Term, 2010 

33 

sentence at sentencing. In the same bill, the General Assembly enacted a new 

classification and registration framework to be applied both to future convictions 

and (as at issue here) to existing convictions. As a consequence, the notices in the 

sentencing entries relate to classifications under the prior law that do not exist in 

the current law (e.g., habitual offender, sexual predator), because the underlying 

law has been repealed and replaced with another set of classifications (Tiers I, II, 

and III) and accompanying requirements. 

{¶ 103} Rather than burden the courts with sifting the hundreds or 

thousands of sex offenders to which new and different requirements apply, the 

General Assembly assigned that administrative task to an executive officer, the 

attorney general. For the reasons explained above, however, this task neither 

requires nor permits the attorney general to open, overturn, or otherwise disturb 

the final judgments of conviction and sentence of any offender. Finally, S.B. 10 

makes the attorney general’s determination subject to an appeal to a trial court by 

a reclassified offender to ensure that the reclassification accords with the new law. 

{¶ 104} Thus, the lead opinion misapprehends both the intent and effect of 

the reclassification mechanism employed by the General Assembly in S.B. 10. 

Because it does not work a legislatively mandated reopening of a final court 

decision, for the reasons set out above, it also does not offend the fundamental 

purpose and requirements of the separation-of-powers doctrine. 

{¶ 105} I also agree with Justice O’Donnell’s point that the lead opinion’s 

disposition of this case on separation-of-powers grounds renders unnecessary any 

consideration of the extent to which stare decisis applies to constitutional claims. 

Because the lead opinion does not address the constitutional claims raised by 

appellants (other than separation of powers), there is no need for the court to 

delve into whether stare decisis requires us to reject the constitutional challenges 

to S.B. 10 on the authority of State v. Cook (1998), 83 Ohio St.3d 404, 700 

N.E.2d 570; State v. Williams (2000), 88 Ohio St.3d 513, 728 N.E.2d 342; and 
SUPREME COURT OF OHIO

34 

State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110. Those 

decisions rejected constitutional challenges to Megan’s Law (Cook and Williams) 

and the S.B. 5 amendments to that law (Ferguson). Our prior cases upholding 

Megan’s Law and its amendments did not address a separation-of-powers issue as 

has been presented in this case. Consequently, the lead opinion’s ruling in this 

case does not implicate the test for overruling precedent contained in Westfield 

Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256. Nor 

does its discussion, which is dicta, settle the issue. 

{¶ 106} Because the lead opinion’s decision does not rule on the 

remaining constitutional claims of appellants, I also decline to address them. 

__________________ 

 Russell V. Leffler, Huron County Prosecuting Attorney, for appellee. 

Gamso, Helmick & Hoolahan and Jeffrey M. Gamso; and Hiltz, 

Wiedemann, Allton & Koch Co., L.P.A., and John D. Allton, for appellants. 

Jones Day, Elizabeth C. Radigan, and Louis A. Chaiten, urging reversal 

for amici curiae Iowa Coalition Against Sexual Assault, Association for the 

Treatment of Sexual Abusers, Jacob Wetterling Resource Center, Detective 

Robert A. Shilling, California Coalition Against Sexual Assault, Texas 

Association Against Sexual Assault, and National Alliance to End Sexual 

Violence. 

Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin 

and Cullen Sweeney, Assistant Public Defenders, urging reversal for amicus 

curiae Cuyahoga County Public Defender. 

Ian N. Friedman & Assoc., L.L.C., and Ian N. Friedman, urging reversal 

for amicus curiae Ohio Association of Defense Lawyers. 

Timothy Young, Ohio Public Defender, and Kelly K. Curtis and Katherine 

A. Szudy, Assistant Public Defenders, urging reversal for amicus curiae Ohio 

Public Defender. 
January Term, 2010 

35 

William D. Mason, Cuyahoga County Prosecuting Attorney, and Mary H. 

McGrath, Assistant Prosecuting Attorney, urging affirmance for amicus curiae 

Cuyahoga County Prosecuting Attorney. 

Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. 

Taylor, Assistant Prosecuting Attorney, urging affirmance for amicus curiae state 

of Ohio. 

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, 

Alexandra T. Schimmer, Chief Deputy Solicitor General, David M. Lieberman, 

Deputy Solicitor, Christopher P. Conomy, Assistant Solicitor, and James A. 

Hogan, urging affirmance for amicus curiae Ohio Attorney General. 

__________________