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Do IT this week: Layering
Barring reversal on appeal, Akron decision is viewed as binding on other cases
By Ed Meyer Beacon Journal staff writer
Published on Thursday, Sep 06, 2007
Thousands of Ohio sex offenders could be affected by this week's federal court ruling that a law barring offenders from living near a school is unconstitutional, defense lawyers said.
David A. Singleton, executive director of the Ohio Justice and Policy Center in Cincinnati, said Tuesday's ruling in U.S. District Court in Akron is binding on all similar cases that might arise in the court's northern district, unless it is reversed on appeal.
In a 21-page decision, Judge James S. Gwin found that the state law prohibiting sex offenders from living within 1,000 feet of a school is unconstitutional for those who committed their crimes before the law took effect on July 31, 2003.
According to statistics released Wednesday by the Ohio Attorney General's Office, 7,099 registered sex offenders committed their offenses before the law took effect.
Lane C. Mikaloff, 39, a registered Summit County sex offender freed Please see Offenders, A5
from prison by the Ohio Parole Board in 2002 after serving 16 years for rape and aggravated burglary, brought the case before Gwin with Singleton representing him during a one-day trial in June 2006.
A spokesman for Attorney General Marc Dann said he plans to appeal Gwin's ruling to the U.S. 6th Circuit Court in Cincinnati on the grounds that it was ''a narrow decision'' intended only as a remedy for Mikaloff's situation.
''In a lawsuit, you're only entitled to the remedy that you ask for, and in this case, the only thing they asked for had to do with Mikaloff. It wasn't a class-action (suit) in any sense,'' attorney general's spokesman Ted Hart said.
Mikaloff and his family had been living, rent-free, in cramped quarters on Beardsley Street on Akron's south side after his release from prison. The residence behind a home owned by his mother had been in his family ''for more than 50 years,'' Gwin wrote.
But in November 2005, Mikaloff received a letter from sheriff's officials giving him 30 days to move.
The case drew nationwide attention after Mikaloff's victim read an Akron Beacon Journal story about his eviction notice and said she had forgiven him long ago.
Punishing Mikaloff again by forcing him to move violated the ex post facto clause of the Constitution, Gwin reasoned, because the 1,000-foot restriction was enacted long after his 1986 crimes.
James L. Burdon, an Akron defense lawyer in practice for nearly 40 years, said Gwin's decision ''sets a precedental value'' for any sex offender ''similarly situated.''
''It's hard for me to imagine that a ruling that says a law does not apply to those who were sex offenders before 2003 applies only to the applicant, because he's interpreting the law. He's not interpreting how that law applies to that defendant alone,'' Burdon said.
Cleveland defense lawyer Mark B. Marein, former head of the Geauga County prosecutor's criminal division, praised Gwin's decision.
''He's a scholar,'' Marein said. ''He is not, so everybody understands, a criminal defense attorney's dream of a judge. He's very hard line, but he's pretty intellectual. In my opinion, that decision's been waiting to happen for years. Finally, somebody had the courage to do it.''
It only stands to reason, Marein said, ''that every defense lawyer in the state of Ohio'' is going to argue that cases similar to Mikaloff's also are unconstitutional, ''and the authority for that assertion will be the opinion that was issued by Judge Gwin.''
Ed Meyer can be reached at 330-996-3784 or emeyer@thebeaconjournal.com.
Thousands of Ohio sex offenders could be affected by this week's federal court ruling that a law barring offenders from living near a school is unconstitutional, defense lawyers said.
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