Opposition Brief — Ohio, Petitioner v. D. R.

No. 22-864

In the

Supreme Court of the United States

_________________________

OHIO,

Petitioner,

V.

D.R.,

Respondent.

_________________________

On Petition for a Writ of Certiorari

to the Supreme Court of Ohio

_________________________

BRIEF IN OPPOSITION

_________________________

STUART BANNER

UCLA School of Law

Supreme Court Clinic

405 Hilgard Ave.

Los Angeles, CA 90095

RAYMOND T. FALLER

JESSICA MOSS

Counsel of Record

Hamilton County

Public Defender

125 E. Court St., 9th fl.

Cincinnati, OH 45202

(513) 946-8256

JMoss@

hamiltoncountypd.org

i

QUESTION PRESENTED

Whether, in a case that is moot and in a decision

that was not a final judgment, the Ohio Supreme

Court erred in holding that the state and federal

constitutions require that the state’s juvenile courts

must have discretion to remove from the sex offender

registry juveniles who have completed the terms of

their dispositions.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

TABLE OF AUTHORITIES ..................................... iii

JURISDICTION ......................................................... 1

CONSTITUTIONAL PROVISIONS INVOLVED ..... 1

STATEMENT ............................................................. 1

REASONS FOR DENYING THE PETITION ........... 7

I.

The Court lacks jurisdiction. ............................... 8

A. This case is moot. ............................................ 8

B. The decision below was not a final

judgment. ...................................................... 10

C. The decision below rests on the Ohio

Constitution. ................................................. 13

II. The decision below does not conflict with

any of this Court’s decisions. ............................. 17

III. There is no lower court conflict. ........................ 20

IV. This case would be a very poor vehicle to

address the question Ohio asserts is

presented. ........................................................... 22

CONCLUSION ......................................................... 24

iii

TABLE OF AUTHORITIES

CASES

Bruggeman v. Taft, 27 F. App’x 456 (6th Cir.

2001) ...................................................................... 21

Commonwealth v. Concepcion, 164 N.E.3d

842 (Mass. 2021) .................................................... 21

Connecticut Dep’t of Public Safety v. Doe, 538

U.S. 1 (2003) ................................................ 7, 17, 18

Cox Broadcasting Corp. v. Cohn, 420 U.S.

469 (1975) ........................................................ 11, 12

Cruz v. Arizona, 143 S. Ct. 650 (2023) .............. 13, 14

Cutshall v. Sundquist, 193 F.3d 466 (6th Cir.

1999) ...................................................................... 21

Doe v. Michigan Dep’t of State Police, 490

F.3d 491 (6th Cir. 2007) ........................................ 21

Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005) ......... 20

First Nat’l Bank of Boston v. Bellotti, 435

U.S. 765 (1978) ........................................................ 9

Florida v. Powell, 559 U.S. 50 (2010) ...................... 16

Fullmer v. Michigan Dep’t of State Police,

360 F.3d 579 (6th Cir. 2004) ................................. 20

In re C.P., 967 N.E.2d 729 (Ohio 2012) ............... 5, 16

In re D.S., 54 N.E.3d 1184 (Ohio 2016) ............... 5, 16

In re J.R., 793 N.E.2d 687 (Ill. Ct. App.

2003) ...................................................................... 20

Jefferson v. City of Tarrant, 522 U.S. 75

(1997) ..................................................................... 10

Johnson v. California, 541 U.S. 428 (2004)

(per curiam) ........................................................... 11

Kansas v. Marsh, 548 U.S. 163 (2006) .................... 12

Kingdomware Techs., Inc. v. United States,

579 U.S. 162 (2016) ................................................. 9

iv

Lassiter v. Dep’t of Social Servs., 452 U.S. 18

(1981) ..................................................................... 19

McKeiver v. Pennsylvania, 403 U.S. 528

(1971) ..................................................................... 19

MedImmune, Inc. v. Genentech, Inc., 549

U.S. 118 (2007) ...................................................... 10

Michigan v. Long, 463 U.S. 1032 (1983) ..... 14, 16, 17

New York v. Quarles, 467 U.S. 649 (1984) .............. 12

North Dakota State Bd. of Pharmacy v.

Snyder’s Drug Stores, Inc., 414 U.S. 156

(1973) ..................................................................... 11

Ohio v. Department of Labor, No. 21A247

(2022) ....................................................................... 9

Ohio v. Robinette, 519 U.S. 33 (1996) ...................... 16

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ........... 12

People v. Hanna, 504 N.W.2d 166 (Mich.

1993) ...................................................................... 21

People v. Jiles, 251 N.E.2d 529 (Ill. 1969) ............... 21

People ex rel. C.B.B., 75 P.3d 1148 (Colo. Ct.

App. 2003) .............................................................. 20

Schall v. Martin, 467 U.S. 253 (1984) ..................... 19

South Dakota v. Neville, 459 U.S. 553 (1983) ......... 12

State v. Angel C., 715 A.2d 652 (Conn. 1998) .......... 21

State v. Behl, 564 N.W.2d 560 (Minn. 1997) ........... 21

State v. Cain, 381 So. 2d 1361 (Fla. 1980) .............. 21

State v. D.H., 901 N.E.2d 209 (Ohio 2009) .......... 5, 16

State v. Eighth Judicial Dist. Ct., 306 P.3d

369 (Nev. 2013) ...................................................... 20

State v. N.R., 495 P.3d 16 (Kan. 2021) .................... 20

State v. Orozco, 483 P.3d 331 (Idaho 2021) ............. 21

State v. Rudy B., 243 P.3d 726 (N.M. 2010) ............ 21

State v. Watkins, 423 P.3d 830 (Wash. 2018) .......... 21

Stokes v. Fair, 581 F.2d 287 (1st Cir. 1978) ............ 21

Turner v. Rogers, 564 U.S. 431 (2011) ....................... 9

v

United States v. Juvenile Male, 670 F.3d 999

(9th Cir. 2012) ....................................................... 20

W.M.F. v. State, 723 P.2d 1298 (Alaska

1986) ...................................................................... 21

Woodard v. Wainwright, 556 F.2d 781 (5th

Cir. 1977) ............................................................... 21

CONSTITUTIONAL PROVISIONS

U.S. Const., amend. XIV ........................ 1, 4, 5, 14, 15

Ohio Const., art. I, § 16 .......................... 1, 4, 5, 14, 15

STATUTES

28 U.S.C. § 1257(a) ............................................... 1, 13

Ohio Rev. Code

§ 2151.355(A) ......................................................... 22

§ 2151.356(C) ......................................................... 22

§ 2151.356(C)(2)(e) ................................................ 22

§ 2151.358(A) ......................................................... 22

§ 2151.358(B) ......................................................... 22

§ 2151.358(B)(5) ..................................................... 22

§ 2152.84 .................................................................. 8

§ 2152.84(A)(2)(b) .................................................... 3

§ 2152.85(B)(1) ..................................................... 3, 8

RULES

Ohio R. App. P. 11.1 ................................................... 9

Ohio Sup. Ct. Rules for the Reporting of

Opinions, Rule 2.2 ................................................... 5

1

JURISDICTION

The Court lacks jurisdiction under 28 U.S.C.

§ 1257(a) for three reasons. First, the case is moot.

Second, the decision below is not a final judgment.

Third, the decision below rests on the Ohio Constitution as well as the U.S. Constitution.

CONSTITUTIONAL PROVISIONS

INVOLVED

The Due Course of Law Clause of the Ohio Constitution, art. I, § 16, provides in relevant part: “All

courts shall be open, and every person, for an injury

done him in his land, goods, person, or reputation,

shall have remedy by due course of law, and shall

have justice administered without denial or delay.”

The Due Process Clause of the Fourteenth

Amendment to the U.S. Constitution provides in relevant part: “nor shall any State deprive any person

of life, liberty, or property, without due process of

law.”

STATEMENT

1. In 2017, when respondent D.R. was sixteen

years old, a group of friends spent the night at his

house. Hearing Transcript, 8/17/2018, at 9. S.L., who

was twelve years old, was one of the friends who

stayed that night. Id. D.R. and S.L. had known each

other a long time. Id. Their mothers were best

friends and the two had grown up together. Id. D.R.

was romantically interested in S.L. and he believed

there was mutual interest on her part. Id. at 26-27.

That night, while they were watching a movie,

D.R. began to touch S.L., first over her clothes and

then under. Id. at 10. S.L. told D.R. to stop. Id. Later

2

in the evening, D.R. again made advances towards

S.L. and ultimately performed oral sex on her. Id. at

10, 18. S.L. said nothing during this portion of the

encounter. Id. at 10. D.R. mistakenly interpreted

S.L.’s silence as consent. Hearing Transcript,

6/7/2019, at 5-6.

In 2018, D.R. entered a plea of “admit” (the juvenile court equivalent of a guilty plea) to gross sexual

imposition. The juvenile court ordered D.R. to pay

restitution and to stay away from S.L. Pet. App. 4a.

The court also ordered D.R. to complete a juvenile

sex offender treatment program. Id. Because D.R.’s

offense, if committed by an adult, would have constituted gross sexual imposition against a victim under

the age of thirteen, state law required D.R. to register as a juvenile offender registrant. Id. at 2a, 4a.

The court classified D.R. as a Tier I offender, the

lowest level and the one with the least restrictive reporting requirements. Id. at 4a.

In 2019, D.R. completed the treatment program.

His probation officer informed the juvenile court that

D.R. had “done really well on probation,” that he had

graduated from high school, that he was working,

and that he planned to attend college. Id. at 5a. D.R.

had also arrived at a mature understanding of his

offense and how it affected S.L. He

reported that he talked extensively with his

mother about what he learned about the victim’s perspective, emphasizing how easy it is to

freeze in those situations. He went on to state

that while he had previously believed that the

victim should have said “no” more seriously

than she did, he noted that his group therapy

3

helped him realize this was a cognitive distortion.

He went on to note that he has since explained to his mother that he learned not all

victims respond the same way and many do not

know how to respond when they are abused,

leaving them to freeze and not telling the perpetrator to stop.

He noted that once he gained insight into the

victim’s perspective, he now feels completely

responsible for the situation.

Hearing Transcript, 6/7/2019, at 5-6.

The juvenile court found that D.R. had “successfully completed all conditions imposed upon him by

[the] Court.” Pet. App. 5a. The court accordingly

terminated D.R.’s probation. Id.

But the juvenile court reluctantly concluded that

it had no power to terminate the requirement that

D.R. register as a juvenile sex offender. Id. at 6a,

50a-52a. By statute, where a juvenile was sixteen or

seventeen years old at the time of the offense, the

juvenile had to continue registering as a sex offender

no matter how effective his treatment was and no

matter how little risk there was that he would

reoffend. Id. at 3a (citing Ohio Rev. Code

§ 2152.84(A)(2)(b)). He could not seek to end this registration requirement until three years after the juvenile court order ending his disposition. Id. (citing

Ohio Rev. Code § 2152.85(B)(1)).

D.R. argued that the statute was contrary to due

process, but the juvenile court found that it was

“constrained by current precedent” to reject the argument. Id. at 6a. The court explained that it lacked

4

“the authority to remove him from the registration

right now. Until the higher court says it can happen,

we’re bound by those decisions, despite what I want

to do.” Id. at 53a.

D.R. appealed on several grounds, including that

the statute violated his rights to procedural and substantive due process under both the federal and Ohio

constitutions.

2. The Ohio Court of Appeals reversed. Pet. App.

37a-48a. The Court of Appeals held that by depriving

juvenile courts of the discretion to remove juveniles

from the sex offender registry, the relevant Ohio

statute—section 2152.84(A)(2)(b)—violates the Due

Course of Law Clause of the Ohio Constitution, art.

I, § 16, and the Due Process Clause of the U.S. Constitution. Id. at 42a-47a. In reaching this conclusion,

the Court of Appeals relied entirely on Ohio Supreme Court decisions. Id.

In seeking discretionary review in the Ohio Supreme Court, the state worded the question on which

it sought review as whether the relevant statute

“complies with state and federal due process and is

fundamentally fair.” Memorandum in Support of Jurisdiction, In re D.R. (Ohio Sup. Ct., July 29, 2021),

at 6. The state argued that the Court of Appeals

erred in accepting “D.R.’s claim that R.C.

2152.84 violated his procedural due process under

the Fourteenth Amendment to the U.S. Constitution

and Article I, Section 16 of the Ohio Constitution.”

Id. The Ohio Supreme Court agreed to review the

question as worded by the state—whether the statute “complies with state and federal due process and

is fundamentally fair.” Pet. App. 7a.

5

3. The Ohio Supreme Court affirmed. Id. at 1a36a.

Like the Court of Appeals, the Supreme Court relied on both the Due Course of Law Clause of the

Ohio Constitution and the Due Process Clause of the

U.S. Constitution. The court cited both clauses in the

opinion’s short syllabus. Id. at 1a. (Under Ohio law,

the law in an opinion of the Ohio Supreme Court is

contained in the opinion’s syllabus as well as in its

text. Ohio Sup. Ct. Rules for the Reporting of Opinions, Rule 2.2.)

The court began by noting that “[w]e examine juvenile procedural-due-process claims through a

framework of fundamental fairness.” Pet. App. 7a

(citing In re C.P., 967 N.E.2d 729, ¶ 72 (Ohio 2012)).

The court observed that “[j]udicial discretion is essential to preserving that special nature of the juvenile process and to maintaining fundamental fairness in the juvenile-justice system.” Id. at 8a (citing

State v. D.H., 901 N.E.2d 209, ¶ 59 (Ohio 2009)). The

court cited several of its own decisions in which “we

have determined that when a statute removes the

discretion of the juvenile court at a critical time in

the proceedings, it offends fundamental fairness.” Id.

(citing In re C.P. at ¶ 85; State v. D.H. at ¶ 59; and

In re D.S., 54 N.E.3d 1184, ¶¶ 32-37 (Ohio 2016).

The Ohio Supreme Court noted that “[t]he state

agrees that fundamental fairness is the framework

by which this court must evaluate D.R.’s constitutional argument.” Id. at 11a. The state’s sole contention, the court observed, was that the statute “is

fundamentally fair when applied to D.R. and to similarly situated juveniles.” Id. But the court concluded

that “our review of relevant precedents affecting

6

Ohio’s juvenile-offender-registration statutes indicates otherwise.” Id. at 11a-12a.

To reach this conclusion, the court analyzed the

facts and holdings of its own decisions—not any of

this Court’s decisions. Id. at 12a-14a. The Court held

that under its own precedents, “individualized determination is necessary for registration to continue

into adulthood for 16- and 17-year-old offenders.” Id.

at 16a. “In a system designed to advance rehabilitation over punishment and to shield juveniles from

the stigma of their juvenile delinquency,” the court

explained, “D.R.’s automatic, continued status as a

juvenile-offender registrant into adulthood is fundamentally unfair. Any decision to continue his classification requires a grounded determination by a

juvenile court that such a penalty is warranted.” Id.

Justice Fischer dissented. Id. at 18a-23a. In his

view, the majority had misinterpreted the court’s

own precedents. Id. at 20a-21a. Justice Fischer concluded that the statute “complies with state and federal due process and is fundamentally fair.” Id. at

23a.

Justice DeWine, joined by Justice Kennedy, also

dissented. Id. at 23a-36a. Unlike his colleagues, Justice DeWine confined his analysis to the federal Due

Process Clause. Id. at 25a-26a. He suggested that

“D.R.’s challenge obviously sounds in substantive

due process,” id. at 28a, despite being “framed as a

procedural-due-process challenge,” id. at 29a. He

contended that “[t]he United States Supreme Court

has firmly rejected the attempt to recast a substantive-due-process claim like D.R.’s under the procedural component of the Due Process Clause.” Id. at

7

29a (citing Connecticut Dep’t of Public Safety v. Doe,

538 U.S. 1, 7-8 (2003)).

Justice DeWine recognized that the majority had

relied on several of the Ohio Supreme Court’s own

decisions. Id. at 33a. He urged his colleagues to “put

out the dumpster fire that is our precedent.” Id. By

overruling the cases on which the majority relied, he

argued, the court could “realign our interpretation of

the Fourteenth Amendment to the United States

Constitution with that of the United States Supreme

Court and make clear that substantive-due-process

claims are to be assessed under substantive-dueprocess standards.” Id. at 35a.

REASONS FOR DENYING THE PETITION

The certiorari petition should be denied.

To begin with, the Court lacks jurisdiction for

three reasons. The case is moot. The decision below

is not a final judgment. And the decision below rests

on the Ohio Constitution as well as the U.S. Constitution.

Even if the Court had jurisdiction, there would be

no reason to review this case. The decision below

does not conflict with any of this Court’s decisions or

with the decisions of any other lower courts.

Finally, even if the Court had jurisdiction, and

even if the decision below conflicted with decisions of

other courts, this case would be an exceedingly bad

vehicle for reviewing any such conflict, for two reasons. First, there is a possibility that the record of

this case will soon be expunged. Second, Ohio repeatedly urged the courts below, including the state

supreme court, to apply the “fundamental fairness”

framework that it rails against in its certiorari peti-

8

tion. Ohio can hardly complain that the state courts

did what it asked.

I. The Court lacks jurisdiction.

Ohio has hit a rare trifecta: There are three independent reasons that the Court lacks jurisdiction to

hear this case. First, the case is moot. Second, the

decision below is not a final judgment. Third, the decision below rests on the state constitution as well as

the federal constitution.

A. This case is moot.

By now, as Ohio concedes (Pet. 22), nothing the

Court could do in this case could have any effect. The

juvenile court had the authority to terminate D.R.’s

classification as a juvenile offender registrant three

years after the court’s order regarding the end-ofdisposition hearing. Ohio Rev. Code § 2152.85(B)(1).

This three-year period expired on September 17,

2022. 1 Pet. App. 39a. On March 1, 2023, the juvenile

court terminated D.R.’s classification pursuant to

Ohio Rev. Code § 2152.84. Ohio elected not to appeal.

This case is therefore moot.

Ohio errs in arguing (Pet. 23-24) that this case

falls within the exception to the mootness doctrine

for controversies that are “capable of repetition, yet

evading review,” on the theory that three years is

not enough time to litigate the question it seeks to

present here. In fact, three years will be plenty of

1 The juvenile court’s order was entered on September 17, 2019.

Pet. App. 39a. Ohio’s certiorari petition erroneously starts the

three-year period on the date of the hearing before the magistrate (June 7, 2019), not the date of the juvenile court’s order.

Pet. 22.

9

time to litigate this question in future cases. The issue is now settled in Ohio, so there will be no need

for oral argument or extensive briefing as the case

moves up the appellate ladder. The state’s appellate

courts have an accelerated calendar for such cases

that provides for briefing in a mere fifteen days.

Ohio R. App. P. 11.1. D.R.’s case was the first in

Ohio to raise the issue, so the state courts appropriately took their time to decide it carefully. But future

cases raising the same issue can be decided much

more quickly.

Ohio has proven that it can be an extraordinarily

speedy litigant—when it wants to be. See, e.g., Ohio

v. Department of Labor, No. 21A247 (2022) (filing a

stay application and a certiorari petition in this

Court on December 18, 2021, as the culmination of a

challenge to a federal policy that was announced only six weeks earlier). In D.R.’s case, by contrast, Ohio

proceeded in a more leisurely fashion. In the state

court of appeals, Ohio obtained two extensions of

time before filing its brief. After losing in the state

court of appeals, Ohio took more than six months to

file its opening brief in the state supreme court. Ohio

thus bears a considerable part of the responsibility

for the delay. If the state were to litigate this issue

with the tenacity it brings to some of its other cases,

it could easily bring the issue to this Court within

three years.

Three years, moreover, is substantially longer

than the periods the Court has deemed short enough

to qualify as “evading review.” See Turner v. Rogers,

564 U.S. 431, 440 (2011) (one year); First Nat’l Bank

of Boston v. Bellotti, 435 U.S. 765, 774 (1978) (eighteen months); Kingdomware Techs., Inc. v. United

10

States, 579 U.S. 162, 170 (2016) (“less than two

years”). Of course, any assessment of whether a given period is too short for litigation must be highly

sensitive to context because some kinds of proceedings take longer than others. The categorical rule

Ohio proposes (Pet. 24), that three years is always

too short, thus makes no more sense than the opposite categorical rule that three years is never too

short. The question is always “too short for what?”

Here, three years would be plenty of time for Ohio to

litigate the issue it wishes to litigate.

As Ohio points out (Pet. 23), the state will have

many opportunities in the future to litigate the issue

in cases where it will affect the parties. In this case,

by contrast, there is no longer an article III case or

controversy. D.R. and Ohio no longer have “adverse

legal interests.” MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118, 127 (2007) (internal quotation marks

omitted). Nothing the Court could decide in this case

would affect D.R. in the slightest. The case is moot.

B. The decision below was not

a final judgment.

In cases arising from state courts, this Court has

jurisdiction to review only “[f]inal judgments.” 28

U.S.C. § 1257(a). “To be reviewable by this Court, a

state-court judgment must be final … as an effective

determination of the litigation and not of merely interlocutory or intermediate steps therein.” Jefferson

v. City of Tarrant, 522 U.S. 75, 81 (1997) (internal

quotation marks omitted). The finality requirement

serves several important purposes. It “avoids piecemeal review of state court decisions,” it “avoids giving advisory opinions in cases where there may be no

11

real ‘case’ or ‘controversy,’” and it “limits review of

state court determinations of federal constitutional

issues to leave at a minimum federal intrusion in

state affairs.” North Dakota State Bd. of Pharmacy v.

Snyder’s Drug Stores, Inc., 414 U.S. 156, 159 (1973).

As Ohio implicitly concedes (Pet. 25), the decision

below was not a final judgment. The Ohio Supreme

Court remanded the case to the juvenile court “with

instructions to hold a new completion-of-disposition

hearing and to determine whether D.R.’s Tier I classification should be continued or terminated.” Pet.

App. 18a. At that point, the case was not over. It was

still uncertain whether the juvenile court would continue or terminate D.R.’s classification as a sex offender. And once the juvenile court made that decision, there was still the possibility of an appeal. The

Ohio Supreme Court’s decision was an important

step toward the end of the litigation, but it was not

the final step. 2

Ohio tries to shoehorn this case (Pet. 25-26) into

the third of the four exceptions to the finality requirement described in Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469, 481 (1975)—the category of cases “where the federal claim has been finally decided,

with further proceedings on the merits in the state

courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate out-

2 Had the dissenters prevailed in the Ohio Supreme Court, the

decision would still not have been a final judgment, because the

dissenters would have remanded the case to the state court of

appeals for consideration of D.R.’s remaining arguments. Pet.

App. 36a. See Johnson v. California, 541 U.S. 428, 429-31

(2004) (per curiam).

12

come of the case.” But Ohio misunderstands the contours of this narrow exception.

The third Cox Broadcasting category is for cases

in which “later review of the federal issue cannot be

had.” Id. This situation typically arises from the

asymmetry inherent in criminal appeals—the defendant can appeal a conviction, but the state cannot

appeal an acquittal. Where the state loses on a federal issue in the state supreme court and the case is

remanded for a trial, there would be no way for the

state to bring the issue to this Court without this exception to the finality requirement. After a remand,

if the defendant is acquitted, the state cannot appeal, and if the defendant is convicted, any appeal

would have to be based on some issue other than the

one on which the defendant already prevailed in the

state supreme court. Nor could the state bring the

issue to the Court in any future case because all future trials will likewise be conducted in compliance

with the state supreme court’s view of the federal

issue, with the same consequences for any appeal.

This is the rationale for the third exception to the

finality requirement described in Cox Broadcasting.

See, e.g., Kansas v. Marsh, 548 U.S. 163, 168 (2006);

Pennsylvania v. Ritchie, 480 U.S. 39, 47-48 (1987);

New York v. Quarles, 467 U.S. 649, 651 n.1 (1984);

South Dakota v. Neville, 459 U.S. 553, 558 n.6

(1983). It is a narrow exception for cases in which

“later review of the federal issue” would otherwise be

literally impossible.

This is not such a case. Ohio would like this Court

to opine on whether the court below erred in holding

that juvenile courts must have the discretion to end

the sex offender registration requirements imposed

13

on certain juveniles. As Ohio effectively acknowledges (Pet. 23), however, Ohio can raise this issue in

any future case involving a juvenile who was sixteen

or seventeen years old at the time of the offense.

Ohio can simply object to the juvenile court’s application of its discretion. When the juvenile court nevertheless exercises its discretion, Ohio can appeal.

The asymmetry inherent in criminal appeals does

not exist in this context. The state could not appeal

an acquittal, but it can appeal the juvenile court’s

decision to remove a juvenile from the sex offender

registry.

Ohio is certainly correct in observing (Pet. 25)

that the issue “will not survive remand in this case”

(emphasis added). But that is only because this case

is just as moot in the lower courts as it is here, for

the same reason. If the case were not moot, the issue

would survive remand. It would be strange indeed

for a case’s mootness to be a reason for this Court to

disregard the finality requirement of 28 U.S.C.

§ 1257(a). Just as two wrongs don’t make a right,

two reasons the Court lacks jurisdiction don’t combine to create jurisdiction.

C. The decision below rests on

the Ohio Constitution.

“This Court will not take up a question of federal

law in a case if the decision of the state court rests

on a state law ground that is independent of the federal question and adequate to support the judgment.” Cruz v. Arizona, 143 S. Ct. 650, 658

(2023) (citations, brackets, and internal quotation

marks omitted). This doctrine is “the product of two

fundamental features of our jurisdiction”—first, that

14

the Court “cannot disturb state-court rulings on

state-law questions,” and second, that “Article III

empowers federal courts to render judgments, not

advisory opinions.” Id. at 662 (Barrett, J., dissenting).

The decision below rests on both the Due Course

of Law Clause of the Ohio Constitution, art. I, § 16,

and the Due Process Clause of the federal Constitution. In this situation, where a state court decision

relies on both state and federal law, this Court examines the state court’s opinion to determine whether “the state court rested its decision primarily on

federal law” or whether, to the contrary, the opinion

includes “a plain statement that the decision below

rested on an adequate and independent state

ground.” Michigan v. Long, 463 U.S. 1032, 1042,

1044 (1983).

Ohio does not dispute that the Ohio Constitution’s

Due Course of Law Clause is an adequate state

ground. The clause provides in relevant part: “All

courts shall be open, and every person, for an injury

done him in his land, goods, person, or reputation,

shall have remedy by due course of law, and shall

have justice administered without denial or delay.”

The text of the Due Course of Law Clause is broader

than the federal Constitution’s Due Process Clause

in some important respects. Unlike the Due Process

Clause, it does not require a deprivation of life, liberty, or property before it can be invoked. And unlike

the Due Process Clause, it explicitly protects “reputation.” This additional protection is especially pertinent to registration as a sex offender, which causes

a grave injury to the registrant’s reputation. There is

no doubt, therefore, that the Due Course of Law

15

Clause is an adequate state ground for the decision

below.

Ohio’s claim is that the Due Course of Law Clause

is not an independent state ground, because, Ohio

asserts, “the Ohio Supreme Court cited the Ohio

Constitution only in passing and only in connection

with the Fourteenth Amendment.” Pet. 20. But this

assertion is simply false. The Ohio Supreme Court

relied primarily on the state constitution, and only

secondarily on the Fourteenth Amendment.

To begin with, the syllabus written by the court,

which summarizes the decision in a single sentence,

cites both the Due Course of Law Clause and the

Fourteenth Amendment. Pet. App. 1a. The syllabus

is a “plain statement,” Long, 463 U.S. at 1044, that

the decision rests on both clauses, not merely the

Fourteenth Amendment.

In the body of the opinion, the court likewise explains that it will address whether the state’s procedure for ending a juvenile’s status as a sex offender

“violated D.R.’s due-process rights under the Fourteenth Amendment to the United States Constitution and Article I, Sections 2 and 16 of the Ohio Constitution and should therefore be held unconstitutional.” Pet. App. 5a.

The “Analysis” section of the opinion, id. at 7a18a, includes 32 citations to court decisions (including references to decisions cited by other decisions,

but not including the case cited at 11a n.1 in response to an argument made by one of the dissents).

Twenty-five of these citations are to the Ohio Supreme Court’s own decisions. Only seven citations

are to this Court’s decisions. The opinion relies principally on three Ohio cases that rely on the state

16

constitution as well as the federal constitution, each

of which relies in turn on other Ohio decisions that

also rely on both constitutions. See In re D.S., 54

N.E.3d 1184, 1191-93 (Ohio 2016); In re C.P., 967

N.E.2d 729, 746-50 (Ohio 2012); State v. D.H., 901

N.E.2d 209, 215-16 (Ohio 2009).

While the opinion does cite a few of this Court’s

decisions interpreting the federal constitution, the

opinion does not say that the state supreme court is

bound to interpret the state constitution in the same

way that this Court interprets the federal constitution. Nor does the opinion treat this Court’s decisions as inexorable commands when it comes to the

state constitution.

This case is thus very different from those in

which the Court has found that state law was not an

independent state ground. In those cases, the lower

courts relied almost entirely on the federal constitution and mentioned state law only in passing. See,

e.g., Long, 463 U.S. at 1043 (“[T]he court below relied

exclusively on its understanding of Terry and other

federal cases. Not a single state case was cited to

support the state court’s holding that the search of

the passenger compartment was unconstitutional.”);

Florida v. Powell, 559 U.S. 50, 57-58 (2010) (“[T]he

Florida Supreme Court trained on what Miranda

demands.”); Ohio v. Robinette, 519 U.S. 33, 37 (1996)

(“Indeed, the only cases [the state court opinion] discusses or even cites are federal cases, except for one

state case which itself applies the Federal Constitution.”).

“Respect for the independence of state courts, as

well as avoidance of rendering advisory opinions,

have been the cornerstones of this Court’s refusal to

17

decide cases where there is an adequate and independent state ground.” Long, 463 U.S. at 1040. Here,

respect for the Ohio Supreme Court means taking

the court at its word. There is no reason to doubt the

honesty of the court’s explanation that its judgment

relies on the state constitution as well as the federal

constitution.

II. The decision below does not conflict

with any of this Court’s decisions.

Even if the Court had jurisdiction, certiorari

would not be warranted, because the decision below

is correct.

Ohio errs in claiming (Pet. 10-12) that the decision below conflicts with Connecticut Dep’t of Public

Safety v. Doe, 538 U.S. 1 (2003). Ohio did not even

mention Doe in its briefing in the state supreme

court or the state court of appeals. And for good reason. Doe has no bearing on this case.

In Doe, the Court held that under a statutory

scheme requiring adult sex offenders to register regardless of their current dangerousness, the Due

Process Clause does not entitle such offenders to a

hearing to prove that they are not currently dangerous. Id. at 7-8. The Court explained that because the

Connecticut courts had no discretion to alter an

adult’s sex offender status based on the offender’s

dangerousness, “any hearing on current dangerousness is a bootless exercise.” Id.

The decision below, by contrast, involves juvenile

offenders, not adults. It involves a statutory scheme

completely different from the one at issue in Doe, a

scheme in which Ohio’s juvenile courts are vested

with ongoing discretion to alter the sex offender sta-

18

tus of juveniles throughout the course of their dispositions. In Ohio, a hearing on whether to lower the

juvenile’s tier classification or declassify a juvenile

after he completes his disposition is not a bootless

exercise but is rather a central feature of the juvenile court system. As the Ohio Supreme Court explained, under state law, “[j]udicial discretion is essential to preserving th[e] special nature of the juvenile process.” Pet. App. 8a.

Ohio also errs in suggesting that the decision below conflicts with Doe in a more diffuse sense. In

Doe, the Court disapprovingly noted that “[i]t may be

that respondent’s claim is actually a substantive

challenge to Connecticut’s statute recast in ‘procedural due process’ terms.” Doe, 538 U.S. at 8 (citation and internal quotation marks omitted). Ohio accuses D.R. (Pet. 10) of committing the same sin.

Here, Ohio is simply wrong. In the state court of appeals, D.R. brought separate challenges based on

procedural and substantive due process. D.R. Ct.

App. Br. 8-18 (first issue: procedural due process); id.

at 18-20 (second issue: substantive due process). The

Court of Appeals agreed with D.R.’s procedural due

process argument, so it did not address his substantive due process argument. Pet. App. 47a. When

Ohio appealed to the state supreme court, the supreme court likewise only had occasion to consider

procedural due process. Throughout this litigation,

D.R. has been scrupulous in distinguishing between

procedural and substantive due process. So have the

state appellate courts.

Ohio errs once more in claiming (Pet. 14-18) that

the decision below conflicts with the general thrust

of this Court’s due process jurisprudence, on the the-

19

ory that the Ohio Supreme Court based the decision

“on its own perceptions of fairness” rather than on

the law (Pet. 16). This claim is a gross misreading of

the decision below. Nothing in the court’s opinion

suggests that the justices “impose[d] their personal

and private notions of fairness” (Pet. 15; internal

quotation marks omitted). To the contrary, the opinion consists entirely of conventional legal reasoning

based on precedent, as it should.

Ohio’s harsh words for the state’s judiciary are

especially ill-mannered in this case, because Ohio

itself argued below that the state supreme court was

required to apply a “fundamental fairness” standard.

In its brief, Ohio insisted that “fundamental fairness

is the overarching concern.” Ohio State Sup. Ct. Br.

5. In the sole point heading of the brief’s argument,

Ohio urged the state supreme court to find that the

statute at issue “is fundamentally fair.” Id. at 3. The

state supreme court conducted precisely the analysis

that Ohio asked it to, by interpreting the very cases

that Ohio cited.

The decision below relies primarily on state law,

as explained above, but to the extent the decision

rests on the federal Constitution, it is faithful to this

Court’s precedents. In juvenile proceedings, “‘fundamental fairness’ [is] required by due process.”

Schall v. Martin, 467 U.S. 253, 263 (1984). See also

Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 24

(1981) (in juvenile proceedings, due process “expresses the requirement of ‘fundamental fairness’”);

McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971)

(plurality opinion) (“[T]he applicable due process

standard in juvenile proceedings, as developed by

20

Gault and Winship, is fundamental fairness.”). This

is the standard that the courts below applied.

III. There is no lower court conflict.

Certiorari is also unwarranted because there is no

lower court conflict to resolve. The certiorari petition

cites no cases that have even addressed the issue

that was decided below by the Ohio Supreme

Court—whether juveniles are entitled to a hearing

regarding the termination of their registration obligations after they complete their dispositions. So far

as we are aware, there are no such cases.

Instead, the petition strings together citations to

several lower court cases that decided different questions:

● State v. N.R., 495 P.3d 16, 26-27 (Kan. 2021)

(cited at Pet. 12), addressed due process only under

the Kansas Constitution.

● State v. Eighth Judicial Dist. Ct., 306 P.3d 369,

379 (Nev. 2013) (cited at Pet. 12), addressed the

same issue this Court decided in Connecticut Dep’t of

Public Safety v. Doe. The same is true of People ex

rel. C.B.B., 75 P.3d 1148, 1150-51 (Colo. Ct. App.

2003) (cited at Pet. 12); In re J.R., 793 N.E.2d 687,

696-99 (Ill. Ct. App. 2003) (cited at Pet. 12); United

States v. Juvenile Male, 670 F.3d 999, 1013-14 (9th

Cir. 2012) (cited at Pet. 12); and Fullmer v. Michigan

Dep’t of State Police, 360 F.3d 579, 582-83 (6th Cir.

2004) (cited at Pet. 13).

● Doe v. Moore, 410 F.3d 1337, 1342-46 (11th Cir.

2005) (cited at Pet. 12), addressed only substantive

due process, not procedural due process.

21

● Cutshall v. Sundquist, 193 F.3d 466, 478-82 (6th

Cir. 1999) (cited at Pet. 13), addressed whether Tennessee’s adult sex offender registration requirement

infringed a constitutionally protected liberty or

property interest.

● Bruggeman v. Taft, 27 F. App’x 456, 458 (6th

Cir. 2001) (cited at Pet. 13), was an unpublished

opinion that merely repeated the holding of Cutshall.

● Doe v. Michigan Dep’t of State Police, 490 F.3d

491, 497-502 (6th Cir. 2007) (cited at Pet. 13), addressed only substantive due process, not procedural

due process.

● Finally, the cases cited at Pet. 17—State v.

Orozco, 483 P.3d 331 (Idaho 2021); Commonwealth v.

Concepcion, 164 N.E.3d 842 (Mass. 2021); State v.

Watkins, 423 P.3d 830 (Wash. 2018); State v. Rudy

B., 243 P.3d 726 (N.M. 2010); State v. Angel C., 715

A.2d 652 (Conn. 1998); State v. Behl, 564 N.W.2d 560

(Minn. 1997); People v. Hanna, 504 N.W.2d 166

(Mich. 1993); W.M.F. v. State, 723 P.2d 1298 (Alaska

1986); State v. Cain, 381 So. 2d 1361 (Fla. 1980);

Stokes v. Fair, 581 F.2d 287 (1st Cir. 1978); Woodard

v. Wainwright, 556 F.2d 781 (5th Cir. 1977); and

People v. Jiles, 251 N.E.2d 529 (Ill. 1969)—merely

held that it is not unconstitutional to try certain juveniles as adults.

These decisions do not conflict with the decision

below because none of them even addressed the

same issue.

22

IV. This case would be a very poor vehicle

to address the question Ohio asserts is

presented.

Even if this Court had jurisdiction, and even if the

decision below conflicted with decisions of this Court

or lower courts, certiorari would still not be warranted, for two independent reasons.

First, there is a possibility that the record of this

case will soon be expunged—that is, destroyed. Under state law, D.R. is entitled to request the sealing

and expungement of the record. Ohio Rev. Code

§§ 2151.356(C), 2151.358(B). The juvenile court may

order both sealing and expungement, or just sealing,

if it finds that D.R. “has been rehabilitated to a satisfactory

degree.”

Id.

§§ 2151.356(C)(2)(e),

2151.358(B)(5). D.R. filed applications for sealing

and expungement in April 2023. A hearing is pending.

If the court orders expungement, the record of this

case will be physically destroyed and electronically

deleted, so that it is permanently irretrievable. Id.

§ 2151.355(A). Even if the court merely orders the

sealing of the record, the record will be automatically

expunged when D.R. reaches his 23rd birthday. Id.

§ 2151.358(A). D.R. is currently 22 years old. He will

turn 23 in January 2024.

There is a possibility, therefore, that the record of

this case will soon cease to exist—perhaps even before the Court can decide the case. This is one reason

that this case would be a poor vehicle for addressing

the question Ohio asserts is presented.

The second reason is that the argument Ohio proffers in its certiorari petition is the opposite of the ar-

23

gument it made below. The certiorari petition argues

that the Ohio Supreme Court went badly astray in

applying the “fundamental fairness” standard to the

juvenile sentencing procedure at issue. Below, however, Ohio argued in favor of applying this standard.

Ohio State Sup. Ct. Br. 5. Ohio, quoting the state

supreme court’s precedents, contended that “fundamental fairness is the overarching concern,” id., and

that “[f]undamental fairness is discovered in a particular situation by first considering any relevant

precedents and then by assessing the several interests that are at stake,” id. at 5-6. Ohio’s sole argument below was that the statute at issue is fundamentally fair. Id. at 6-12. The state supreme court

duly applied the framework that Ohio asked it to

apply. Pet. App. 7a-8a.

Ohio has now changed its litigation strategy. Now

it is attacking the standard it urged upon the lower

courts. To grant certiorari despite this U-turn would

only encourage future litigants to engage in the

same kind of sandbagging. Ohio could easily have

preserved the claim it wishes to make in this Court

by arguing below in the alternative—first, that “fundamental fairness” is the wrong standard, and second, that if it is the right standard, the juvenile sentencing procedure is fundamentally fair. But Ohio

did not do that. Having successfully urged the state

supreme court to use the fundamental fairness

standard, Ohio should not be heard now to argue for

some other standard instead.

24

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

STUART BANNER

UCLA School of Law

Supreme Court Clinic

405 Hilgard Ave.

Los Angeles, CA 90095

RAYMOND T. FALLER

JESSICA MOSS

Counsel of Record

Hamilton County

Public Defender

125 E. Court St., 9th fl.

Cincinnati, OH 45202

(513) 946-8256

JMoss@

hamiltoncountypd.org