Friday, July 10, 2009

Eleventh District v. Eleventh District

Last week, in the context of judges sometimes surprising you, I wrote this post about Spangler v. State. That's the case in which two judges of the Eleventh District Court of Appeals held (for overlapping but different reasons) that Ohio's current sex offender registration and notification law, the Adam Walsh Act (AWA), is unconstitutional.

But what happens next?

The easy answer is that the Ohio Supreme Court will eventually tell us whether the law is constitutional. As I mentioned in that post, the Ohio Supreme Court has taken in four cases addressing different aspects of AWA and will be hearing them all on a single morning, presumably in the fall sometime. (Full disclosure: I am lead counsel in one of the cases, State v. Bodyke and am counsel for the ACLU of Ohio as amicus curiae in another, Chojnacki v. Dann.) (We tried to get the Ohio Supremes to resolve this mess back in 2007 in a case called Welton v. Dann. They refused then. Now they've got the mess we warned them about.)

But that really misses the point. The appellate courts are supposed to provide guidance to the lower courts and the people in their district. While the Ohio Supremes act on their schedule, waiting for the cases to be briefed, then scheduling argument, then issuing an opinion, the lower courts are dealing with these questions. Some trial courts are declining to enforce AWA while they wait for guidance from Columbus. Others have enforced it. The courts of appeals have, likewise taken different approaches.

But there are opinions out there, and when a court acts, people are supposed to be able to rely on it. Which is what makes the Eleventh District so interesting right now.

You see, in the ordinary course of things, when the court decided Spangler, it would have resolved - unless and until the Ohio Supreme Court said otherwise - the constitutionality of the AWA within thse counties that comprise that cour's base. And since Spangler said AWA is unconstitutional, that would be that.

Except for this.

The same day Judges Grendell,Cannon, and Trapp decided Spangler, a different (though overlapping) panel of three judges from the Eleventh District (Trapp, Rice, and O'Toole) decided State v. Maggy in which they decided that AWA is constitutional. So, at least for now, AWA is constitutional and it is not.

Which raises this question: if you live (or work or go to school or just pass through for three days or more) in the Eleventh District, does AWA apply to you? Yes. And no.

You figure it out.

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