Although this appellate blog focuses primarily on civil appeals, every now and then the Ohio Supreme Court issues a noteworthy opinion in a criminal case that addresses a legal doctrine equally significant to civil attorneys and their business clients. The court’s Oct. 21, 2021, decision in State v. Hubbard is just such a criminal case. Why? Because the split decision reflects a deep divide on the court on the appropriate way to analyze retroactive laws – statutes that are intended to reach back in time and apply to persons or circumstances predating the law’s effective date. This issue arises with frequency on the civil side of the practice. For example, one of the cases I worked on for former Justice Cook during my clerkship years ago, Bielat v. Bielat, involved a retroactive law about beneficiary designations in IRAs, and is cited in Hubbard. 

Analyzing retroactive laws in Ohio proves complex

The concept of retroactivity under Ohio law is so significant that it has its own clause in the State Constitution. Specifically, Article II, Section 28 of the Ohio Constitution states that the General Assembly “shall have no power to pass retroactive laws.” That sounds simple enough. So then how did four Justices in Hubbard conclude that the General Assembly could permissibly apply brand-new (arguably onerous) registration requirements to violent offenders whose crimes were committed before the March 20, 2019, effective date of those requirements? The answer is complicated. Complicated enough, in fact, that Justice Stewart’s dissenting opinion in Hubbard (joined by Justices Brunner and Donnelly) is more than 100 paragraphs long, and even includes a detailed discussion of the debates at the 1850-1851 Constitutional Convention.

It would be impossible to distill the 60-pages of plurality and dissenting opinions in Hubbard into a digestible review, but following are some key takeaways.

Highlights of Hubbard opinion

Justice Kennedy, who announced the judgment of the court (with Chief Justice O’Connor concurring in judgment only), noted the court has previously held that a statute is unconstitutionally retroactive if (1) the General Assembly expressly made the statute retroactive; and (2) the statute is substantive – “impairing vested, substantial rights or imposing new burdens, duties, obligations, or liabilities as to a past transaction, such as a retroactive increase in punishment for a criminal offense.” She opined that the new registration requirements for violent offenders at issue in Hubbard did not meet this second prong, and that the requirements (known as Sierah’s Law) are “less burdensome and less invasive” than other registration schemes that the court has previously upheld against retroactivity challenges. Sierah’s Law requires, among other things, the establishment of a Violent Offender Database to be made available to federal, state and local law-enforcement officers, including information collected by local county sheriffs from violent offenders. The information offenders must provide is detailed in paragraph 20 of Justice Kennedy’s opinion, and in R.C. 2903.43.

Dissenting, Justice Stewart opined that Hubbard will only exacerbate confusion that has persisted about the court’s retroactivity jurisprudence. In Justice Stewart’s view, the Ohio Supreme Court has for the last 20 years failed to apply a complete ex post facto analysis (including the U.S. Supreme Court’s intent-effects test from Smith v. Doe) when appellants claim that the General Assembly is retroactively increasing punishment for crimes. Under that test, a court must determine whether the legislature intended to enact a civil, remedial law or a criminal, punitive one. If the latter, that ends the inquiry. But if the legislature intended to enact a remedial law, then the court must also examine whether the law is so punitive in its purpose or effect as to override the legislative intent to enact a remedial law. Justice Stewart opined that the registration requirements in Sierah’s Law were punitive for several reasons she describes beginning at paragraph 78 of her dissenting opinion.

Retroactivity remains debatable

Because Justice Kennedy’s opinion in Hubbard garnered three votes instead of four, Hubbard may not be destined to become the next “leading case” on the retroactivity doctrine. But attorneys faced with a vexing question of retroactivity would do well to review both her plurality opinion and Justice Stewart’s dissenting opinion. The bottom line is that despite the Ohio Constitution’s simplistic-sounding prohibition against retroactive laws, the General Assembly frequently enacts them, the Ohio Supreme Court frequently upholds them, and Hubbard reflects that there can be considerable debate among jurists as to whether the state’s judicial branch is appropriately enforcing the constitutional ban.