Order: BOARD OF TRUSTEES OF HARRISON TOWNSHIP vs JAMES A MUTTER

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IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO

BOARD OF TRUSTEES : CASE NO. 05-7276
OF HARRISON TOWNSHIP,
Plaintiff, : (Judge A.J. Wagner)

(Magistrate David H. Fuchsman)
ve

MAGISTRATE’S DECISION
JAMES A. MUTTER,

Defendant.

To: Honorable A.J. Wagner
From: Magistrate David H. Fuchsman
I. PROCEDURAL HISTORY

Pursuant to an order of the Court dated October 12, 2005, this matter was referred to the
undersigned Magistrate for all purposes as prescribed by Ohio Civil Procedure Rule 53.

Plaintiff, Board of Trustees of Harrison Township (hereinafter “Harrison Township”), filed its
complaint on September 22, 2005, requesting that this court issue a preliminary injunction restraining
Defendant, Mr. Mutter, from residing and/or occupying his residence in violation of Ohio Revised
Code 4 2950.031. Additionally, on September 22, 2005, Harrison Township filed a Motion for
Preliminary Injunction with Supporting Affidavit of Detective John Clymer, pursuant to Rule 65 of
the Ohio Rules of Civil Procedure. On October 25, 2005, Defendant, Mr. Mutter, filed his answer.

Harrison Township filed a Motion to Consolidate the Hearing on Preliminary Injunction with theTrial on the Merits pursuant to Ohio Civil Rule 65(B)(2) on November 8, 2005. This Magistrate
granted Harrison Township’s Motion to Consolidate on November 29, 2005.

The matter was scheduled for hearing on December 5, 2005, and on that date the parties
agreed to submit a joint stipulation of facts, and to submit memorandum of law arguing their
respective positions. On December 5, 2005 the parties filed a stipulation of facts. On December 28,
2005, Defendant, Mr. Mutter, filed a Memorandum in Opposition of Injunctive Relief. Plaintiff,
Harrison Township, filed a Memorandum in Support of Injunctive Relief on January 4, 2005. The
matter is now properly before the Magistrate for decision.

II. FINDINGS OF FACT

In the case at bar, the facts are essentially undisputed, and the only issue in controversy is
whether the application of Ohio Revised Code J 2950.031 to Mr. Mutter, in its operation, violates
Section 28 Article [1 of the Ohio Constitution, and/or operates to violate the Ex Post Facto Clause of
Article I, Section 10 of the United States Constitution.

Defendant, Mr. Mutter, was indicted on December 13, 2002, on two counts of Gross Sexual
Imposition involving a minor under the age of thirteen.’ Mr. Mutter pled guilty as charged and was
sentenced to community control sanctions (probation) on March 25, 2003. Also on March 25, 2003,
Mr. Mutter was designated a Sexual Oriented Offender. He was then required to sign a form entitled
“Explanation of Duties to Register as a Sex Offender.” On March 28, 2003, Mr. Mutter signed
another form that was entitled “General Conditions of Supervision.” Neither the Explanation of

Duties to Register as a Sex Offender nor the General Conditions of Supervision forbade Defendant

Since the facts are essentially undisputed, this Magistrate will adopt Defendant, Mr. Mutter’s,
recitation of the facts for the remainder of this section, unless the citation indicates otherwise.from living within 1,000 feet of a school premises. At the time of Defendant’s sentencing, Ohio
Revised Code { 2950.031(A) had not been enacted; the effective date being July 31, 2003.

Defendant, Mr. Mutter, currently resides at 2150 Kildare Avenue, Dayton, Ohio, 45414.
Stipulation of Fact § 1. Mr. Mutter’s residence is located within 1000 feet of a schoo] premises,
commonly known as John H. Morrison Elementary. /d, Mr. Mutter and his wife acquired a thirty
(30) year mortgage in 1977, which encumbers the property at 2150 Kildare Avenue. /d. at ]2. The
mortgage payments will be completed on the note in 2008. /d.

On June 7, 2005, a detective employed by the Montgomery County Sheriff notified Mr.
Mutter of his alleged violation of Ohio Revised Code { 2950.031(A), and instructed Mr. Mutter to
move himself from the premises immediately and permanently. Clymer Aff. September 20, 2005 at J
3. The notice was hand delivered to Mr. Mutter. fd. Subsequently, on September 22, 2005, Plaintiff,
Harrison Township, initiated the present lawsuit requesting that this court issue a preliminary
injunction restraining Defendant, Mr. Mutter, from residing and/or occupying his residence in.
violation of Ohio Revised Code { 2950.031.

Tl. LAW AND ANALYSIS
A. Standard of Review for Injunctive Relief

When a plaintiff seeks a permanent injunction, the plaintiff must show actual success on the
merits, rather than a mere likelihood of success on the merits. Eller Media Co. vy, City of Cleveland
(N.D.Ohio 2001), 161 F.Supp.2d 796, 807, fn. 4. See also City of Bexley v. Duckworth (March 7,
2000), 10" Dist. No. 99AP-414 (citing McCormac, Ohio Civil Rules Practice (2 Ed.1992) 403, §
14.08 which explains that permanent injunctions are issued after a trial on the merits). The Ohio

General Assembly has mandated that “the plaintiff shall not be required to prove irreparable harm in4
order to obtain [injunctive] relief’ pursuant to Ohio Revised Code § 2950.031(B). Notwithstanding,
an injunction may be granted only upon a showing, by clear and convincing evidence, that the movant
is entitled to an injunction. Westco Group, Inc. v. City Mattress (Ohio App. 2" Dist. 1991), 1991
Ohio App. LEXIS 3878 at*8.

B. Presumption of Constitutionality

This Court must address the controversy in the case at bar being mindful of the instructions by
the Second District Court of Appeals regarding constitutional challenges of statutes. “Legislative
enactments enjoy a strong presumption of constitutionality. In furtherance of this presumption, courts
must liberally construe legislation in order to save it from constitutional infirmities, and all
reasonable doubts must be resolved in favor of constitutionality.” State v. Newsome (Ohio App. 2"
Dist. 2003), 2003 Ohio App. LEXIS 2238 at *3 (internal citations omitted; emphasis added).
Furthermore, the Supreme Court of Ohio provided further guidance in State v. Cook (Ohio 1985), 83
Ohio St. 3d 404, 409: “[S]tatutes enjoy a strong presumption of constitutionality. ‘An enactment of
the General Assembly is presumed to be constitutional, and before a court may declare it
unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional
provisions are clearly incompatible.’ State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142,
128 N.E.2d 59, paragraph one of the syllabus. ‘A regularly enacted statute of Ohio is presumed to be
constitutional and is therefore entitled to the benefit of every presumption in favor of its
constitutionality.’ /d. at 147, 128 N.E.2d at 63. ‘That presumption of validity of such legislative
enactment cannot be overcome unless it appear[s] that there is a clear conflict between the tegislation
in question and some particular provision or provisions of the Constitution.” Xenia v. Schmidt

(1920), 101 Ohio St. 437, 130 N.E. 24, paragraph two of the syllabus; State ex rel. Durbin v. Smith(1921) 102 Ohio St. 591, 600, 133 N.E. 457, 460; Dickman, 164 Ohio St. at 147, 128 N.E.2d at 63.
C. Ex Post Facto

Defendant, Mr. Mutter, argues that the application of Ohio Revised Code {| 2950.031 operates
to violate the Ex Post Facto Clause of Article I, Section 10 of the United States Constitution. It
should be noted at the outset that neither Mr. Mutter, nor Harrison Township, addressed the merits of
this argument in their memorandum. Nonetheless, other courts have considered whether statutes that
prohibit a sex offender from residing near a school violate the Ex Post Facto Clause of the United
States Constitution. See Coston v. Petro (S.D. Ohio 2005), 2005 U.S. Dist. LEXIS 38424 at *6; Doe
y, Miller (8" Cir. 2005), 405 F.3d 700, linois v. Leroy (Ill. App. 5" Dist 2005), 357 Ill. App. 3d 530.
In doing so, those courts have uniformly determined that such restrictions do not violate the Ex Post
Facto Clause of the United States Constitution. This Magistrate does not take exception to the
analyses undertaken in those cases. Thus, this Magistrate also concludes that R.C. 2950.031, as
applied to Mr. Mutter, does not violate Ex Post Facto Clause of Article I, Section 10 of the United

States Constitution.

Section 10, Article I of the United States Constitution reads, "No State shall * * * pass any * *
* ex post facto Law." The United States Supreme Court defined an ex post facto law as “any statute
which punishes as a crime an act previously committed, which was innocent when done; which
makes more burdensome the punishment for the crime, after its commission.” Beazell vy. Ohio
(1925), 269 U.S. 167, 169. At the outset, it is important to be cognizant of the fact that the Ex Post
Facto Clause applies only to criminal statutes. California Dept. of Corrections v. Morales (1995), 514

U.S. 499, 504; Collins v. Youngblood (1990), 497 U.S. 37, 43. The United States Supreme Court hasnot delineated a specific test for determining whether a statute is criminal or civil for purposes of
applying the Ex Post Facto Clause. See Morales, 514 U.S. at 508-509. Instead, the Court has
recognized that determining whether a statute is civil or criminal is a matter of statutory
interpretation. Helvering v. Mitchell (1938), 303 U.S. 391, 399; State v. Cook (Ohio 1998), 83 Ohio
St. 3d 404, 415.

In the case at bar, on its face R.C. 2950.031 imposes no criminal sanctions, but merely grants
a right to bring a civil action for injunctive relief against a sex offender. See Coston v. Petro (8.D.
Ohio 2005), 2005 U.S. Dist. LEXIS 38424 at *6; Doe v. Miller (8" Cir. 2005), 405 F.3d 700, Minois
y. Leroy (Ill. App. 5" Dist 2005), 357 Ill. App. 3d 530. Nevertheless, if the intention of the legislature
was to enact a statue that is civil and nonpunitive, such a statue may still run afoul of the prohibition
against ex post facto laws if it is so punitive in either purpose or effect that it negates the state’s
intention to deem it civil. Smith v. Doe (2003), 538 U.S. 84, 92. “Only the clearest proof” will
transform what the legislature has denominated as a civil regulatory measure into a criminal penalty.

Id.

In order to determine whether R.C. 2950.031 is so punitive in either purpose or effect that it
negates the state’s intention to deem it civil, courts consider what the Supreme Court described in
Smith v. Doe as "useful guideposts" for determining whether a law has a punitive effect. In analyzing
the effect of the Alaska sex offender registration law, the Court in Smith pointed to five factors drawn
from Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 168-69, as particularly relevant: (1)
whether the law has been regarded in our history and traditions as punishment; (2) whether it
promotes the traditional aims of punishment; (3) whether it imposes an affirmative disability or

restraint; (4) whether it has a rational connection to a nonpunitive purpose; and (5) whether it isexcessive with respect to that purpose. Smith v. Doe, 538 U.S. at 97. These factors are "neither
exhaustive nor dispositive," Jd (quotation omitted), and the court should consider them as an aid in

its analysis.

In considering these factors in relation to a 2000 foot residency restriction applicable to sexual
offenders residing in Iowa, the United States Court of Appeals for the Eighth Circuit made the
following conclusions: (1) “the law is unlike banishment in important respects, and we do not believe
it is of a type that is traditionally punitive;” (2) “{w]hile any restraint . . imposed on those who
commit crimes is at least potentially retributive in effect, we believe that [the statute], like the
registration requirement in Smith v. Doe, is consistent with the legislature’s regulatory objective of
protecting the health and safety of children;” (3) “[the statute] does impose an element of affirmative
disability or restraint, [but] we believe this factor ultimately points us to the importance of the next
inquiry;” (4) “in light of the high risk of recidivism posed by sex offenders . . . the legislature
reasonably could conclude that [the statute] would protect society by minimizing the risk of repeated
sex offenses against minors;” and (5) the court concluded that the statute was consistent with the
legislature’s regulatory purpose and not “excessive” within the meaning of the Supreme Court’s

decisions. Doe v, Miller (2005), 405 F.3d 700, 718-23.

In the end, the Eighth Circuit concluded that the statute does not amount to unconstitutional
ex post facto punishment because the appellees did not establish, by the clearest proof, as required by
Supreme Court precedent, that the punitive effect of the statute overrides the General Assembly’s
legitimate intent to enact a nonpunitive, civil regulatory measure that protects health and safety. Id. at
704, Although the cases cited above are not binding on this court, this Magistrate does not believe

that the Kennedy v. Mendoza-Martinez guidepost analysis, as applied to R.C. 2950.031, would differ8

in any significant respect from the analysis and ultimate conclusion that was reached in Doe v. Miller.
This conclusion is supported by the United States District Court, Southern District of Ohio, that
stated in Coston v. Petro: “Section 2950.03) likely does not violate the Ex Post Facto Clause because
it is not punitive in nature.” 2005 U.S. Dist. LEXIS 38424 at *6. Therefore, this Magistrate also
concludes that R.C. 2950.031, as applied to Mr. Mutter, does not violate the Ex Post Facto Clause of
Article I, Section 10 of the United States Constitution.
D._ Section 28 Article II of the Ohio Constitution

Defendant, Mr. Mutter, argues that the injunctive relief requested by Plaintiff, Harrison
Township, is violative of Mr. Mutter’s rights under the Constitution of the State of Ohio.
Specifically, Mr. Mutter contends that Ohio Revised Code { 2950.031, as applied to him, is a
retroactive substantive statute that impairs his vested property rights with respect to transactions past
because it requires him to move from his current home--a place he has resided for over twenty-seven
years. In contrast, Plaintiff, Harrison Township, claims that Ohio Revised Code § 2950.031 clearly
expresses the intent of the legislature to have it apply retroactively, and it operates for a remedial
purpose. Therefore, Harrison Township contends that the statue does not violate Section 28, Article
Il of the Ohio State Constitution, and Harrison Township further prays that this court grant its Motion.
for Injunctive Relief. For the following reasons, this Magistrate finds that Plaintiff's argument is
well-taken, and therefore Plaintiff should be granted the injunctive relief requested.

Ohio Revised Code | 2950.031 was enacted by Senate Bill 5, which took effect on July 31,
2003. R.C. 2950.031 provides that:

(A) No person who has been convicted of, is convicted of, has pleaded guilty to, or
pleads guilty to either a sexually oriented offense that is not a registration-exemptsexually oriented offense or a child-victim oriented offense shall establish a residence
or occupy residential premises within one thousand feet of any school premises.

(B) If a person to whom division (A) of this section applies violates division (A) of
this section by establishing a residence or occupying residential premises within one
thousand feet of any school premises, an owner or lessee of real property that is located
within one thousand feet of those school premises, or the prosecuting attorney, village
solicitor, city or township director of law, similar chief legal officer of a municipal
corporation or township, or official designated as a prosecutor in a municipal
corporation that has jurisdiction over the place at which the person establishes the
residence or occupies the residential premises in question, has a cause of action for
injunctive relief against the person. The plaintiff shall not be required to prove
irreparable harm in order to obtain the relief.

Section 28, Article II of the Ohio Constitution provides that “the general assembly shall have
no power to pass retroactive laws.” Additionally, Ohio Revised Code { 1.48 proclaims that “[a]
statute is presumed to be prospective in its operation unless expressly made retrospective.” The Ohio
Supreme Court articulated a two-part framework for determining whether a statute is impermissibly
retroactive under the Ohio Constitution in State v. Walls:

Because R.C. 1.48 establishes a presumption that statutes operate prospectively only,

the issue of whether a statute may constitutionally be applied retrospectively does not

arise unless there has been a prior determination that the Ohio General Assembly

specified that the statute so apply. If there is no clear indication of retroactive

application, then the statute may only apply to cases which arise subsequent to its

enactment. If the court can find, however, a clearly expressed legislative intent that a

statute apply retroactively, the court proceeds to the second step, which entails an
analysis of whether the challenged statute is substantive or remedial.

State v. Walls (2002), 96 Ohio St. 3d 437, 440-41, 775 N.E.2d 829, 835 (internal citations omitted).

The unambiguous language of Ohio Revised Code ] 2950.031 clearly demonstrates that the
legislature intended the statute to reach back in time. The legislature specifically chose to make the

statue applicable to any person “who has been convicted of, is convicted of, has pleaded guilty to, or10

pleads guilty to either a sexually oriented offense that is not a registration-exempt sexually oriented
offense or a child-victim oriented offense.” R.C. 2950.031. By employing both the past and future
tenses, the legislature made it abundantly clear that R.C. 2950.031 applies, regardless of when the
underlying offense was committed. Consequently, this Magistrate finds a clearly expressed

legislative intent that R.C. 2950.031 be applied retroactively.

Having determined that R.C. 2950.031 meets the first prong of the test for retroactive
application pursuant to R.C. 1.48, this Magistrate must now examine whether R.C. 2950.031 is
substantive or remedial. “A statute is ‘substantive’ if it impairs or takes away vested rights, affects an
accrued substantive right, imposes new or additional burdens, duties, obligation[s] or liabilities as to
a past transaction, or creates a new right.” Cook, 83 Ohio St. 3d at 411 (citing Van Fossen v.
Babcock & Wilcox Co. (1998), 36 Ohio St. 3d 100, 107, 522 N.E.2d 489, 496). On the other hand, a
statute is remedial if it merely affects the remedy provided. Id. Remedial laws “substitute a new or
more appropriate remedy for the enforcement of an existing right.” Jd. Retroactive application of a
purely remedial statute does not operate to violate Section 28, Article II of the Ohio Constitution. /d.
Additionally, the general rule is that laws relating to procedures are remedial in nature, despite the

fact that such a law may have an occasional substantive effect. Id.

This Magistrate is compelled to conclude that R.C. 2950.031 is a remedial statute that was
designed to further two complementary goals: combating recidivous sexual misconduct, and
protecting children from cruel sexual victimization. This conclusion is supported by the forthcoming
analysis that synthesizes the intent of the Ohio General Assembly with longstanding judicial
precedent. Although Ohio courts have not yet determined whether R.C. 2950.031 is substantive or

remedial, this Magistrate is influenced by principles articulated in the related cases discussed below,11

which provide “guidance regarding the scope of constitutional restrictions, the competing interests
involved, and the attendant public policy concerns.” State v. Meadows (Ohio 1986), 28 Ohio St. 3d

43, 45 (citing Gutter v. Dow Jones, Inc. (Ohio 1986), 22 Ohio St. 3d 286, 288).

Remedial laws are those that designate “methods of enforcement of rights or obtaining
redress.” EPI of Cleveland, Inc. v. Limbach, (Ohio 1989) 42 Ohio St. 3d 103, 106, 537 N.E.2d 651,
654. See also State v. Walls, 96 Ohio St. 3d at 442 ("’"Remedial’ has been defined as those laws
affecting merely the methods and procedures by which rights are recognized, protected and enforced,
not the rights themselves”). The Ohio General Assembly declared the following legislative
determination in regards to Chapter 2950: “Sex offenders and offenders who commit child-victim
oriented offenses pose a risk of engaging in further sexually abusive behavior[,] . . . and protection of
members of the public from sex offenders and offenders who commit child-victim oriented offenses
is a paramount governmental interest.” R.C. 2950.02. The legislative purpose behind R.C. Chapter
2950 is to promote public safety, and it is clear that state legislatures may reasonably respond to what
they sensibly perceive as a “substantial risk of recidivism.” See Smith v. Doe (2003), 538 U.S. 84,
103 (“Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk
of recidivism. The legislature's findings are consistent with grave concerns over the high rate of
recidivism among convicted sex offenders and their dangerousness as a class”). Long ago the United
States Supreme Court proclaimed that “[a] democratic society rests, for its continuance, upon healthy,
well-rounded growth of young people into full maturity as citizens.” Prince v. Massachusetts (1944),
321 U.S. 158, 168. The Supreme Court of Ohio sanctioned this self-evident and compelling principle
in Meadows, 28 Ohio St. 3d at 45. In furtherance of that principle, the Supreme Court of the United

States and the Supreme Court of Ohio have each “sustained legislation aimed at protecting the12

physical and emotional well-being of youth, even when laws have operated in the sensitive area of
constitutionally protected rights.” New York v. Ferber (1982), 458 U.S. 747,757; Meadows, 28 Ohio
St. at 60. Additionally, the United States Supreme Court and Ohio courts have declared that the
“prevention of sexual exploitation and abuse of children . . . [is] a government objective of surpassing
importance.” Ferber, 458 U.S, at 757; State v, Hubbard (Ohio App. 12" Dist. 2005), 2005 Ohio
App. LEXIS 5785 at *9. In light of the foregoing, this Magistrate believes that R.C. 2950.031 is a
remedial statute that permissibly operates to remedy recividous sexual misconduct, while
simultaneously accomplishing the paramount governmental interest of protecting Ohio’s children~a
class who are among those least able to protect themselves.

To lend further support to this Magistrate’s view that the disputed legislation is remedial in
nature, this Magistrate will next address Mr. Mutter’s assertion that R.C. 2950.031 is unconstitutional
because it allegedly impairs his vested property rights with respect to transactions past (inasmuch as
it requires him to move from his current home). This Magistrate will respond to Mr. Mutter’s
argument by evaluating the following issues: (1) Whether Mr. Mutter has a vested property right in
residing at 2150 Kildare Avenue; and (2) Whether granting Harrison Township injunctive relief
would unconstitutionally impair Mr. Mutter’s vested property right in his ownership of 2150 Kildare
Avenue.

First, the Supreme Court of Ohio has held that “where no vested right has been created, a later
enactment will not burden or attach a new disability to a past transaction or consideration, in the
constitutional sense, unless the past transaction or consideration created at least a reasonable
expectation of finality.” Cook, 83 Ohio St. 3d at 412 (citing State ex rel. Matz v. Brown (1998) 37

Ohio St. 3d 279, 281, 525 N.E.2d 805, 807). This Magistrate has conducted ample research of theauthority in Ohio in an effort to determine what constitutes a vested property right in the
constitutional sense. Although the authority is scant, this Magistrate does not believe that Mr. Mutter
has a vested property right in residing at 2150 Kildare Avenue for the forthcoming reasons.
The Court of Appeals of Ohio, Twelfth Appellate District, wrote the following concerning

vested property rights in /n re Hensley, (Ohio App. 12" Dist 2003) 154 Ohio App. 3d 210, 215-216:
““Vested’ is an adjective meaning, ‘having become a completed, consummated right for present or
future enjoyment; not contingent; unconditional; absolute ***.’ Black's Law Dictionary (7th Ed.
1999) 1557. A ‘vested right’ is ‘[a] right that so completely and definitely belongs to a person that it
cannot be impaired or taken away without the person's consent.’" /d. at 1324. Similarly, a Cuyahoga
County Municipal Court gave the following explanation:

Ohio's constitutional prohibition against retroactive laws was designed to protect

“vested rights." To be vested in a legal sense, a right must be complete and

consummated, and one of which a person to whom it belongs cannot be divested

without his consent. A vested right is one which it is proper for the state to recognize

and protect, and which an individual cannot be deprived of arbitrarily without

injustice. A right cannot be considered as vested in a constitutional sense unless it

amounts to something more than a mere expectation of future benefit or interest

founded upon an anticipated continuance of the existing general laws. A vested right

is substantially a property right.

Ohio v. Muqdady (110 Ohio Misc. 2d 51, 55, 744 N.E.2d 278, 280-281 (internal citations omitted).
The Supreme Court of Ohio has also held that “a law that attaches a new disability to a past

transaction or consideration is not a prohibited retroactive law unless the past transaction or
consideration created at least a reasonable expectation of finality.” Matz, 37 Ohio St. 3d at 282. It is
well settled that felons have no reasonable expectation that their conduct will never be made the
subject of future legislation. See Hensley, 154 Ohio App. 3d at 216; Matz, 37 Ohio St. 3d at 282;

Ohio v. Fortman (Ohio App. 2™ Dist. 1998), 1998 Ohio App. LEXIS at *15-16. Furthermore,14
“convicted felons are properly subjected to many restrictions on their constitutional rights that would
be objectionable if imposed on non-felons.” Doe v. Petre (2005), 2005 U.S. Dist. LEXIS at *1.

In light of the foregoing precedent, this Magistrate concludes that Mr. Mutter does not have a
vested property right in residing at 2150 Kildare Avenue. First, Mr. Mutter was convicted of Gross
Sexual Imposition involving a minor under the age of thirteen, which is a felony pursuant to R.C.
2907.05. Second, R.C. 2950.031 merely curtails Mr. Mutter’s conduct, as it prohibits Mr. Mutter
from occupying a residential premises within one thousand fect of any school premises. Under these ,
facts, Mr. Mutter has no reasonable expectation that his conduct (i.e., residing at 2150 Kildare
Avenue) will never be made the subject of future legislation. Thus, since a right cannot be
considered as vested--in a constitutional sense--unless it amounts to something more than a mere
expectation of future benefit or interest founded upon an anticipated continuance of the existing
general laws, Mr. Mutter does not possess a vested property right in residing at 2150 Kildare

Avenue.”

2

In Ohio v. Fortman, the Court of Appeals of Ohio, Second Appellate District, analyzed whether R.C.
2950.11 (sexual predator notification provisions) was unconstitutionally retroactive. In concluding
that R.C, 2950.11 did not violate the retroactivity clause of the Ohio Constitution, the court employed
the following analysis, which lends further support to this Magistrate’s conclusion that R.C. 2950.031
is not unconstitutional:

According to the Matz test, because a sexual predator has "no reasonable expectation of
finality" in his past felonious conduct, R.C. 2950.11 does not attach to it anew
disability, and thus, does not offend the retroactivity clause. The fact that R.C, 2950.11
is triggered by the antecedent fact of a conviction for a sexually oriented offense does
not make the statute impermissibly retroactive. Because Fortman has no reasonable
expectation of finality in his past conviction, R.C. 2950.11 does not "burden or attach a
new disability" to his past conviction. (internal citations omitted).

Fortman, 1998 Ohio App. LEXIS at *15-16.15

Next, this Magistrate concludes that granting Harrison Township injunctive relief would not
constitutionally impair Mr. Mutter’s vested property right in his ownership of 2150 Kildare Avenue.
Even though Mr. Mutter argues that prohibiting residency in a parcel of land “impairs his vested
property right,” not every impairment of a vested right is per se unconstitutional. The Ohio General
Assembly may prohibit a particular use of property if it falls within the state’s police power.

This Magistrate readily concedes that Mr. Mutter has a vested property right in his ownership
of 2150 Kildare Avenue. Nonetheless, it is significant that although R.C. 2950.031 restricts Mr.
Mutter’s use of the premises (i.¢., residing at 2150 Kildare Avenue), R.C. 2950.031 does not require
that Mr. Mutter sell or transfer his ownership interest in 2150 Kildare Avenue. The residency
restriction in the subject parcel of land affects just one of the many rights that flow from property
ownership. The “positive rights that flow from property ownership include the rights to possess, to
use, to manage, to generate income, to consume or destroy, to alienate, and to transmit through devise
and bequeath.” O. Lee Reed, What is Property? 41 Am. Bus. L.J. 459, 471-472. Under R.C.
2950.031, Mr. Mutter retains an interest in his property that is freely assignable, transferable, and
saleable and usable.

Furthermore, this Magistrate believes that such a residency restriction is constitutionally
permissible because it falls properly within the State’s police power. Section 19 of Article I of the
Ohio Constitution provides: “[P]rivate property shall ever be held inviolate but subservient to the
public welfare.” In related cases involving constitutional challenges regarding a "taking" of property,

the Supreme Court of Ohio has held the following:16
[A]n owner's right as a user of his land is limited to a "lawful" or "legitimate" use. The
general assembly may provide that a particular use of land shall be unlawful, even
though that use had theretofore been lawful. . .Where, by a valid statute, the general
assembly has prohibited a particular use of property or has provided that such use shall
constitute a nuisance, the owner no longer has a lawful or legitimate right to so use his
land. Whether such a statute is valid will depend upon whether it comes within the
police power.

Ghaster Properties, Inc. v. Preston (Ohio 1964), 176 Ohio St. 425, 430, 200 N.E.2d 328, 333.
Furthermore, the Supreme Court of Ohio has stated that: “to insist that private rights are immutable
and once vested can never be changed is to ignore the precept that private right is always subordinate
to public right asserted by the proper exercise of the police power.” id. at 425.

Again, although Ohio courts have not entertained this exact issue, the Supreme Court of
Ohio’s pronouncements concerning related settings are germane to the instant case. This Magistrate
believes that granting Harrison Township injunctive relief does not constitutionally impair Mr.
Mutter’s vested property right in his ownership of 2150 Kildare Avenue.’ First, the actual
impairment of his vested property right, in light of the language of R.C. 2950.031, restricts only one
of the many potential usages that flow from property ownership (although obviously a significant
potential usage). Next, this Magistrate believes that this impairment of Defendant’s vested property
tight is constitutionally permissible if it falls within the state’s police power. To that end, the United
States Supreme Court has held that state legislatures may reasonably respond to what they sensibly
perceive as a “substantial risk of recidivism.” See Smith v. Doe, 538 U.S. 84, 103. Furthermore, as
discussed above, in enacting R.C. 2950.031 the Ohio General Assembly sought to protect Ohio’s

children from cruel sexual victimization. Therefore, the legislative restriction of R.C. 2950.031 is a

3
This Magistrate would be less than candid if he did not concede that the conclusion reached

in this decision was not made more difficult by the fact that Defendant has lived in the
subject property for nearly 29 years.proper incident of the state’s police power to protect the safety of its citizens (i.e., children).

In the end, this Magistrate concludes that R.C. 2950.031 is a remedial statute that is
constitutional as applied to Mr. Mutter. Furthermore, Harrison Township has demonstrated actual
success on the merits in the case at bar, and the balance of equities before this Magistrate weigh in
favor of granting Harrison Township a permanent injunction.

ILI. CONCLUSION

Therefore, it is the decision of the Magistrate as follows:

1. Ohio Revised Code { 2950.031, as applied to Defendant, James Mutter, does not
operate to violate the Ex Post Facto Clause of Article I, Section 10 of the United States
Constitution;

2. Ohio Revised Code { 2950.031, as applied to Defendant, James Mutter, does not
operate to violate Section 28 Article II of the Ohio Constitution;

3. Plaintiff's, Board of Trustees of Harrison Township, Motion for Injunctive Relief be
GRANTED, thereby enjoining Defendant, James Mutter, from residing and/or occupying the
premises located at 2150 Kildare Avenue, Dayton, Ohio, or any premises within 1000 feet of
school premises; and enjoining James Mutter residing and/or occupying, in the future, any
premises within 1000 feet of a school premises; and,

4) Costs of this action shall be paid by the Defendant, James Mutter.

Counsel are referred to Civil Rule 53 and Rule 2.31 of the Rules of the Montgomery County

Common Pleas Court regarding the filing of objections to the Magistrate’s decision.No party shall assign as error on appeal the Court’s adoption of any finding of fact or

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conclusion of law in that decision unless the party timely and specifically objects to that finding

or conclusion as required by Civil Rule 53 (E)(3).

Copies of the above were sent to all parties listed below by ordinary mail this date of filing.

Douglas M. Trout
Attorney at Law

301 West Third Street
P.O. Box 972
Dayton, Ohio 45422
Attorney for Plaintiff

Jay B. Carter

Attorney at Law

111 West First Street - Suite 519
Dayton, Ohio 45402

Attorney for Defendant

SHERI HODSON, Bailiff (937) 225-4168

IT IS SO ORDERED.

DoS Sa

David H. Fuchsman, Magistrate