Saturday, May 1, 2010


I’d like to make a short Post here just to point out what must be one of the shortest Dissents in American legal history.

The Opinion in the case, “Gildersleeve v. Ohio”, is here. The Court is the 8th Appellate District of Ohio.

The Dissent is two sentences long and appears as Para. 89, on page 32 (in the Adobe browser format) of the 33-page Opinion.

As so often, the case is about whether SO’s classified prior to the State’s legislation attempting to bring its Sex Offense regime into compliance with the Adam Walsh Act can simply be re-classified without further ado (which of course will most likely mean being classified upward).

The Plaintiff/Appellants posit 9 Assignments of Error. The first is our old friend, Ex Post Facto and the second is our old friend Retroactivity: thus that to apply AWA to previously adjudicated and assigned SOs violates those two Clauses in both the State and US Constitutions.

The Court for the most part disagrees with them. Certainly, it disagrees with Assignments 1 and 2.

It has to, because if you grant that the AWA violates Ex Post Facto and Retroactivity then it has to be ‘punitive’ and not ‘regulatory’, ‘criminal’ and not ‘civil’ and then the whole regime collapses in an unconstitutional heap.

That’s been true ever since the get-go, and surely in the 1995 Poritz Opinion whereby New Jersey’s top court tried to create some semblance of constitutionality for sex-offense legislation regimes. I did a series of Posts on this site last summer in the matter of Poritz.

I’ve always hoped that courts would have the nerve to stab this monstrous thing right in the heart and call it unconstitutional at its very core; surely any ‘registration’ beyond confidential police files is punitive, and Notification is nothing more than an electronic age version of the Colored-Star system of that unhappy 12-year-hoped-to-be-thousand-year German government of the middle of the last century.

Not yet.

But Ohio’s Supreme Court Justices (individually; they have never managed to gain a majority in any particular case) have been moving along the ‘evolutionary’ path toward unconstitutionality: that while the SO legislation is not and never has been at its core unconstitutional, yet by the intensification of requirements increasingly placed upon SOs over the years it has now ‘evolved’ beyond a tipping-point into unconstitutionality.

The 8thAppellate is not going to rock the boat and most often in this Opinion declares itself bound by precedent and the State Supreme Court’s Opinions; curiously, it raises that ‘defense’ so often that you almost wonder if they’re not trying to say that they don’t necessarily like the SO regime, but they have no choice (and – is this possible? – that maybe the Ohio public should step in to help out here by reining in their legislators).

Anyhoo, one Justice dissents. And it’s two sentences long. One sentence announces his dissent. The second sentence , in which he cites a similar Opinion from which he had Dissented, is quick and to the point: “I would sustain the first and second assignments of error, which would make the remaining assignments moot”. And that’s it.

In other words, he DOES think that the State version of AWA violates both the Ex Post Facto and Retroactivity Clauses of the State and US Constitutions, which hits the thing right between the eyes and the rest of the assignments are thereby immediately rendered unnecessary because the law has now been effectively killed.

Well, as so often in these things, we find dissent that is honest and - given the conditions of a Mania – courageous.

And it appears – as defense attorney Norm Pattis has said – that there are actually a lot of judges at various levels who think this whole thing has gone beyond the pale.

But lots of judges probably realized that in Germany 70 years ago. Yet so many remained silent and took a quiet but no less dark, path.

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