Update: On December 21, 2020, the Court dismissed this case as improvidently certified.
“If we agree with you and we sever out subsection (b) in its entirety, doesn’t your client lose?”
Justice Fischer, to counsel for Carlisle
“So, explain to me how this authority given to law enforcement can be exercised to thwart the discretion of a judge.”
Chief Justice O’Connor, to the Deputy Solicitor General
On August 18, 2020, the Supreme Court of Ohio heard oral argument in State of Ohio v. Christian Carlisle, 2019-1700. At issue in this case is whether R.C. 2909.15(D)(2)(b), the reduction provision of the Arson Offender Registration Statute, unconstitutionally violates the separation of powers doctrine.
Case Background
On June 23, 2018, Christian Carlisle was terminated from his job at Wal-Mart. After his termination, Carlisle set a fire in the Wal-Mart store and was consequently charged with aggravated arson, arson, and inducing panic. After Carlisle pleaded guilty to arson, the trial court sentenced him to 180 days in jail, with 90 days suspended, 12-months community control, and a $250 fine. Both defense counsel and the prosecutor requested that the trial court require Carlisle to register as an arson offender for only ten years, rather than for his lifetime. However, the trial court disregarded the joint request and ordered Carlisle to register as an arson offender for life. Carlisle appealed the trial court’s mandatory lifetime registration order.
The Appeal
In a 2-1 decision, the Eleventh District affirmed the trial court’s judgment. The appeals court found that the statutory registration requirements are not part of a criminal sentence and therefore declined to apply a felony-sentencing standard of review to the registration requirement.
Additionally, despite Carlisle’s failure to raise the issue below, the Eleventh District held that R.C. 2909.15(D)(2)(b) does not violate the separation of powers doctrine. In so holding, the court noted that the General Assembly has created a number of mandatory registries in which the judiciary does not have the inherent discretion to determine whether an offender should register, or unhindered discretion to determine the length of time during which an offender must register. Requiring that the prosecutor and investigating agency request a shortened registration period before a court may consider shortening the period does not interfere with or remove a court’s discretion because the executive branch’s request does not bind the court to any decision. The executive branch’s request is simply a precondition, or catalyst, for the trial court’s discretion, which does not infringe upon the authority of the judicial branch.
The third member of the panel concurred with the majority’s decision to certify a conflict but dissented on the separation of powers issue and would find that R.C. 2909.15(D)(2)(b) violates the separation of powers doctrine. By depriving the trial court of the unfettered ability to consider a reduced registration period, the dissenting judge would find that the statute in question compromises the independence of the judiciary.
The Eleventh District sua sponte certified a conflict between its decision and the Fourth District’s opinion in State v. Dingus, 2017-Ohio-2619 (4th Dist.).
Certified Conflict Question
Does R.C. 2909.15(D)(2)(b) unconstitutionally violate the doctrine of separation of powers?
Certified Conflict Case
State v. Dingus, 2017-Ohio-2619 (4th Dist.) (R.C. 2909.15(D)(2)(b) unconstitutionally violates the separation-of-powers doctrine because the statute does not allow the trial court to consider reducing an arson offender’s registration period without the authorization of the executive branch.)
Read the oral argument preview of the case here.
Key Statutes and Precedent
R.C. 2909.15(A)(1)-(2) (Mandatory Registration Statute for Arson Offenders) (Any arson offender must register with the sheriff’s office in the county where they live within ten days of being classified as an arson offender or within ten days of being released from incarceration.)
*R.C. 2909.15(D)(2)(b) (Arson Registry Reduction Provision)(The registration requirement shall continue for the rest of the arson offender’s life. However, the trial court may reduce the registration period to a minimum of ten years if the prosecutor and investigating agency so request.)
Geiger v. Geiger, 117 Ohio St. 451 (1927) (A portion of a statute can be severable, as long as certain conditions are met, such as if the statute could stand on its own once the problematic language has been severed.)
State v. Collier, 62 Ohio St.3d 267 (1991) (“[I]f at all possible, statutes must be construed in conformity with the Ohio and the United States Constitutions.”)
State v. Cook, 83 Ohio St.3d 404 (1998) (A court may declare a statute unconstitutional only if it “appear[s] beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.”)
State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451 (1999) (Courts must “jealously guard the judicial power against encroachment from the other two branches of government and conscientiously perform [their] constitutional duties and continue [their] most precious legacy.”)
State ex rel. Bray v. Russell, 89 Ohio St.3d 132 (2000) (The judicial power rests exclusively in the judicial branch, and the courts’ authority in that area shall not be infringed upon.)
Norwood v. Horney, 2006-Ohio-3799 (The separation of powers doctrine governs the constitutional allocation of power within our tripartite government.)
*State v. Sterling, 2007-Ohio-1790 (“The determination of guilt in a criminal matter and the sentencing of a defendant convicted of a crime are solely the province of the judiciary.”)
State v. Williams, 2011-Ohio-3374 (The registration requirements of R.C. 2950 are punitive, rather than remedial, measures.)
*State v. Reed, 2014-Ohio-5463 (11th Dist.) (The language of the Mandatory Registration Statute for Arson Offenders “reveals the General Assembly’s intent to protect the public.”)
State v. Romage, 2014-Ohio-783 (Statutes receive a “strong presumption of constitutionality.”)
State v. Jirousek, 2015-Ohio-949 (11th Dist.) (Mandatory registration orders are not part of the sentence imposed in a criminal proceeding.)
*State v. Noling, 2016-Ohio-8252 (The unconstitutional portion of a statute can be removed, as long as the Legislature’s intention is preserved.)
*Cited by counsel at oral argument
At Oral Argument
Arguing Counsel
Justin J. Mackin, Assistant Lake County Public Defender, for Appellant Christian Carlisle
Diane R. Brey, Deputy Solicitor General, Columbus, arguing as Amicus Ohio Attorney General Dave Yost for Appellee State of Ohio
Carlisle’s Argument
R.C. 2929.15 (D)(2)(b), the Arson Registry Reduction provision violates the separation of powers. That provision requires a person convicted of an arson offense to register for life on the arson registry unless the prosecuting attorney and the investigating agency allow the judge to consider a sentencing period of not less than ten years. The judge cannot consider anything other than a mandatory lifetime registration unless the investigating agency and the prosecutor give their approval to the judge considering that reduction. But if either does not request this, the judge has no discretion, and cannot even consider this reduction. Their decision on this is not appealable to anyone. It is the judge that should have that discretion. And in this case, the record does not even reflect the position of the investigating agency. At the plea and sentencing, the judge did inform the defendant about the mandatory registration but made no mention of the possibility of reduction or how that could happen.
The legislature had two intentions with this statute. The first was to protect the public, but the second was to provide an option for less than lifetime registration. Under the statute as written, if a defendant wants to request some sort of reduction, the judge cannot even consider that if the investigating officer and the prosecutor don’t also agree.
This Court has the power to sever the offending portion of the statute, as it did in State v. Noling with the statute requiring leave of this Court to appeal the trial court’s denial of a defendant’s application for postconviction DNA testing. Here, the Court need only remove a portion of subsection (b), specifically the conditional reduction requirement upon the okay of the prosecutor and investigating agency. Removing every word in subsection (b) starting with “if” would mean the judge can decide on registration for a period not less than 10 years all the way up to mandatory lifetime registration. That is the sentencing power that Mr. Carlisle is asking for, and that would be consistent with the requirements in Geiger. Nor is this inconsistent with the Court’s analysis in State v. Williams. Failure to register as required under the arson registration statute is a violation which subjects the defendant to criminal punishment.
State’s Argument
The arson registry is constitutional. The statute involved does not invade the inherent power of the judiciary, nor does it interfere with the court’s determination of guilt. It is the arson conviction itself which subjects a person to the registry, which distinguishes this from the Sterling case.
Sentencing involves all three branches of government in some fashion. The legislature sets the crime and the punishment. The prosecutor chooses when to make the charging decision, when to plea bargain, and when to send someone to a pretrial diversion program, and those do not create a separation of powers problem. The judge imposes the sentence from the available options. Sentencing is not an area where there is an inherent exclusive power of the judiciary.
In this case, the finding of the arson itself is what was to be determined. There is no question that the trial court made that finding based on the defendant’s no contest plea. Defining the elements of a crime and setting the punishment for a particular crime is a legislative function. Here, the General Assembly has set out a mandatory duty that flows from the arson conviction itself. As this Court has said, a sentence that is inconsistent with the sentencing statute is not even a sentence.
The sentencing transcript in this case indicates that defense counsel asked for the reduced registration period, and the prosecutor did not object. There is no indication that the investigating agency had any different view of this matter. The prosecutor ordinarily works with the investigating agency and can be expected to speak on behalf of both since both are representing the state. It would be very unlikely to have a discrepancy on this issue between the prosecutor and the law enforcement agency because they work in tandem. There certainly was no such disagreement in this case.
Another pertinent analogy is the state’s former indeterminate sentencing laws. Under that scheme, the adult parole authority would actually decide how long a person would serve in prison. That is not all that different from this situation where the prosecutor recommends a lesser registration time for the defendant. It is also worth noting that the arson registry is not public. It is accessible only by the fire marshal and certain fire personnel presumably to assist in public safety and arson investigations.
Separation of powers is a matter of degree. It’s not as if each branch of government is put in a hermetically sealed box. There will be different interactions at different points in the system, which does not create a separation of powers problem. Sentencing is a good example because each branch of government intersects to some degree. That is permissible under separation of powers. It is not unusual to have discretion in the executive branch at various levels, whether it is the parole authority, the governor and his pardon authority or the prosecutor with charging authority.
The Court need not decide in this case whether the arson registry is a criminal punishment, although it has characteristics of a civil remedial provision, as many courts of appeals have characterized it.
As for the suggested remedy of severability, the state disagrees with Carlisle’s proposed solution. If the Court does opt for severability, consistent with Geiger, the proper way would be to remove all of subsection (D)(2)(b), which would then leave everyone with a lifetime registration requirement.
What Was On Their Minds
Separation of Powers
Although there may be some problems with the statute, if the prosecuting attorney and the investigating agency cannot dictate what the trial court does, how is that a problem with separation of powers, asked Justice Stewart?
There’s a big difference between a recommendation and the ability to thwart another branch of government from exercising its authority, noted Chief Justice O’Connor. She added that her concern was not with the recommendation but with having the ability to thwart the court’s discretion rest with the police.
If the Court find this is a civil rather than a criminal matter, there can’t be a separation of power problem, can there, asked Justice DeWine? He added that there are all kinds of nonappealable decisions made by executive agencies.
Role Confusion
Justice Stewart commented that it seemed strange that the prosecutor and the investigator had the power to lower the sanctions for the defendant when that really is defense counsel’s bailiwick. Shouldn’t defense counsel be the one to initiate requests to lower the defendant’s sanction?
Where does the investigating agency exercise the kind of authority found in this statute, asked Chief Justice O’Connor? She added that she could see it with an elected prosecutor and other executive branch members, but not with the police.
Stepping on Judicial Discretion
Was the prosecutor in this case opposed to a 10-year term, asked Justice DeWine? Is this case even properly before us?
If the prosecuting attorney and the investigator request that the registration period be for 10 years rather than for a lifetime, does the statute require that the trial judge make the registration 10 years, asked Justice Stewart? Can the judge deny that request and still impose the lifetime registration? What if the two of them disagree? Is the request invalid? How does this give the executive branch control over what the trial court decides with registration since the statute only allows a request? She added that she found the statute problematic in that the request could only come from the prosecuting attorney along with the investigative agency and not from defense counsel, but the request was nothing more than a request. If one of them agrees and the other does not, does the court lack the authority to reduce the registration period? What if there were a particularly acrimonious relationship between defense counsel and the prosecuting attorney, could the prosecutor arbitrary refuse to request the reduction even if the facts would warrant it?
If law enforcement and the prosecutor are so aligned, why not just give the power to request a reduction solely to the prosecutor, asked Chief Justice O’Connor, noting that the statute requires both.
Couldn’t the law enforcement agency just pocket veto the reduction request by not showing up and giving its opinion, asked Justice Fischer? Just because a prosecutor recommends a sentence, doesn’t mean the court has to accept it, does it?
Under the statute as written, even though it might be unlikely, if the investigating officer disagrees with the prosecutor’s recommendation, couldn’t the investigating officer restrict the judge’s discretion to act on the request for reduction, asked Justice Donnelly?
Criteria For Registration Reduction
While acknowledging that this issue wasn’t specifically before the Court, Justice Stewart asked how this whole thing worked. What factors are considered in a request to reduce registration to 10 years? Does the trial court get to inquire as to why that request was made? Do the requestors have to set forth some reason for requesting that the registration period be reduced?
In a key question of the day, Chief Justice O’Connor asked if the judge, in the judge’s discretion, would like to impose ten years, aren’t the judge’s hands tied because the trigger to get to the 10 years, the lesser requirement, is the action by the prosecutor and the investigating agency in tandem? She added that she found that to be problematic because of the imposition it puts on the judge, and commented that there was a lesser registration requirement to be had but the step to get there doesn’t allow the judge to use discretion.
Could the legislature write a law— a felony of the second degree, for example—and say the sentencing range is 2-8 years in prison, but the judge cannot go below 5 unless the prosecutor consents to this. Would that be constitutional, asked Justice Donnelly?
Nature of Arson Registry
Is this a criminal punishment at all, asked Justice DeWine? If so, why? He added that it was purely a registration requirement, and on a registry not available to the general public. If it is not a punishment, isn’t this a really easy question? The executive branch has all kinds of civil registration requirements. If it’s not a punishment it doesn’t seem like any of these issues are implicated, does it? What could the registry have said –that it is civil and not criminal? He added that in State v Williams the Court distinguished but did not overrule its prior case law which said that notification requirements and registration in those circumstances were not punitive. This seems a lot more like those than the scheme in Williams, doesn’t it?
Language in Arson Registry Reduction Provision
Isn’t what the statute requires for a reduction in registration time a request from the arson investigator and the prosecutor, asked Justice Stewart? Hasn’t the General Assembly decided what the legislation requirements would be?
Was the problem here that the judge lacked the discretion to reduce the term, asked Justice DeWine? He added that the problem here seemed to be that the judge couldn’t impose a 10-year term, adding that the record seemed pretty clear that the judge didn’t want to.
Severance as the Remedy
If the Court were to sever out subsection (b), wouldn’t the defendant lose, asked Justice Fischer? If that provision is eliminated, isn’t the only option lifetime registration? Would that enforce the legislative intent?
Forfeiture
Did the attorney at trial raise the arguments that are being raised here, asked Justice DeWine?
How it Looks from the Bleachers
To Professor Emerita Marianna Bettman
I’m going to disagree with my student contributor Maria Ruwe and call this one for the Carlisle, although I certainly see her point. This case has many layers to it. But in the final analysis, I think the reduction provision at issue compromises the independence of the judiciary. It’s not that the court has to accept a recommendation for a reduced registration period just because the prosecutor and presumably the investigating agency recommend it. It’s that the court cannot impose a reduced sentence unless they do.
Chief Justice O’Connor seemed the most concerned with this stepping on judicial discretion, specifically with a judge who wanted to impose ten years instead of lifetime registration needing permission to do so, especially from law enforcement. She expressed her concern in several different ways about the statute providing for a lesser registration requirement without allowing the judge unfettered discretion to use it. I think Justices Stewart and Donnelly are there, too, and I’m going to add Justice Fischer to their side. Justice DeWine favors the state, and I suspect Justice Kennedy will join him. Justice French didn’t say anything during this very hot argument. She tends to be a stickler both on legislative intent, and on separation of powers, so it’s hard to say where she stands on this one.
Justice DeWine clearly sees this is a civil, rather than a criminal matter. This Court has gone many rounds on this issue, culminating in a final determination in State v. Williams, that the sex offender registration requirements of RC 2950 are punitive, not remedial. But the arson registry is different. For one thing, it is not public (which I learned during the oral argument), which could make a difference here. But to me, the significance here is not whether this registry is similar to the sex offender registry, but whether the choice about the length of registration leaves the trial judge with no discretion and vests that power solely in the executive branch instead.
Justice DeWine also questioned whether this case was even properly before the Court, since the prosecutor (and presumably law enforcement, but their position apparently wasn’t on the record) favored a reduction, but the judge apparently did not, and imposed lifetime registration. That certainly diminishes Carlisle’s argument that her discretion was interfered with in this case (and yes, a ding to Justice DeWine, who several times referred to the trial judge as a “he” when the trial judge was a “she.” )
Finally, as to the remedy, if we reach that, the Court certainly has the power to sever any unconstitutional provision, as it did very effectively in State v. Noling. If the Court does go that route, the outcome would very much depend on which way the Court chooses to sever.
Here’s the language in(D)(2)(b):
“The judge may limit an arson offender’s duty to register at an arson offender’s sentencing hearing to not less than ten years if the judge receives a request from the prosecutor and the investigating law enforcement agency to consider limiting the arson offender’s registration period.”
For the state, Ms. Brey argues the most logical path would be to sever all of subsection (b), which would leave lifetime registration as the only option and would be an example to Carlisle of be careful what you wish for. For Carlisle, Mr. Macklin argues the Court could sever everything starting after the word “if” which would leave a less than lifetime option for the judge in the judge’s discretion. Of course, before we get to that step, a majority has to accept Carlisle’s argument.
To Student Contributor Maria Ruwe
I think the Court will find for the State, even though Justice Stewart and Chief Justice O’Connor admitted that they find the statute problematic. Specifically, Chief Justice O’Connor disliked the fact that the statute gave such significant authority to a law enforcement agency. However, Justice DeWine seemed convinced that arson offender registration is a civil remedy, on which the executive frequently imposes many restrictions. Accordingly, the statute at issue would be constitutional. Although Carlisle’s attorney opposed the classification of arson registration as a civil remedy (instead of a criminal punishment), Justice DeWine cited case law that supports this classification. Carlisle’s attorney tried to argue that arson registration is criminally punitive, but I did not find his argument compelling. Therefore, I believe the Court will find that arson registration is a civil remedy, and that the statute is constitutional.