Top court to settle dispute

The sex offender still owns the property and has the right to rent or sell it, one court said.

CINCINNATI (AP) — One state appeals court has ruled that part of the Ohio law barring convicted sex offenders from living near schools is unconstitutional; another state appeals court has upheld the law.

The Ohio Supreme Court will hear arguments Wednesday to resolve the conflict.

The question is whether a law that prohibits sexually oriented offenders from living within 1,000 feet of a school can be enforced against a person who owned such a home before the law was passed, and whose offense occurred before the law was passed.

The Supreme Court is reviewing the case of Gerry Porter, who bought and began living in a house in the Cincinnati suburb of Cheviot in 1991. He was convicted of misdemeanor sexual imposition in 1995, and of sexual battery in 1999.

Cincinnati lawyer David Singleton, the executive director of the Ohio Justice & Policy Center, says the case hinges on the issue of property rights. He acknowledges that Porter’s case may not be one that evokes sympathy from a majority of citizens.

“The constitution did not ask how popular Mr. Porter is; it asks are his vested property rights being impaired?” Singleton said. “That’s the question. Because you know what, if you can do this to Mr. Porter, if you can tell him he doesn’t have a right to live in his own home, then you don’t have a right to live in your own home and I don’t have a right to live in my own home.”

In 2003, the Ohio Legislature enacted the 1,000-foot rule, and in 2005 amended it to allow officials in counties, townships and municipalities to pursue eviction proceedings against sex offenders.

Officials determined that the back corner of Porter’s lot was 983 feet from St. Jude Elementary School and ordered him to move out. Singleton argued that the state cannot enforce the law retroactivity, but a Hamilton County Common Pleas Court ruled against Porter, and that ruling was upheld by the 1st District Court of Appeals.

The appeals court reasoned that even though Porter was forced to stop living in his home, the move did not divest him of his substantive property right because it allowed him to maintain ownership of the house, which he could rent to someone else.

However, the appeals court noted that its decision conflicted with one from the nearby 2nd District Court of Appeals, which found the residency restriction was unconstitutional.

“It’s not like we have no law on our side at all,” Singleton said. “We’ve got this great opinion out of Dayton, the district court there.”

In that case, the appeals court reversed the ruling of the Miami County Common Pleas Court that said Charles Dover, who pleaded guilty to attempted gross sexual imposition in 1998, had to move from the home he had lived in for almost 30 years.

That appeals court said the Ohio law did affect a substantive right and was unconstitutional.

Whatever the Supreme Court decides, the ruling will impact only a few people.

“This case only concerns someone who both purchased his home and committed his offense before the law went into effect,” Singleton said. “It’s a very narrow issue. It’s not the bulk of sex offenders in Ohio. Probably the bulk of them are renters or they committed their offenses after the law went into effect.”

The American Civil Liberties Union has filed a brief supporting Porter. The Ohio attorney general’s office supports Green Township and Hamilton County.

Arguments will be at the Darke County Courthouse in Greenville, part of the Supreme Court’s twice-a-year program of holding sessions away from Columbus.