toledoblade.com --

COLUMBUS - The Ohio Supreme Court yesterday struck down a Medina County judge's order that a man who fathered seven children with five women and was $38,000 behind in child-support payments must make "all reasonable efforts" to stop procreating.

In a 5-2 ruling, the court did not say the controversial order was unconstitutional but did find it to be "overbroad," with no option for Sean Talty, 32, but to pay up to have the anti-procreation order lifted.

"It is undisputed that the right to procreate is considered fundamental under the United States Constitution and that the trial court's order in this case infringes that right," wrote Chief Justice Thomas Moyer for the majority.

Judge James Kimbler in 2002 sentenced Talty to five years of community control under the supervision of a probation officer after he pleaded no contest to two felony counts of nonsupport for three of his children.

The judge, however, threatened Talty with further penalties, including up to a year in prison, if he failed to "make all reasonable efforts to avoid conceiving another child" during that five-year period.

"What those efforts are are up to [Talty], and that is not for me to say," Judge Kimbler said at the time. "I am not mandating what he does, only that he has to make reasonable efforts to do so."

The Supreme Court, however, determined that the order was too broad and refused to accept the prosecution's argument that the condition was a reasonable alternative to sentencing Talty to prison where he could have been denied conjugal visits, essentially accomplishing the same nonprocreation goal.

Justice Paul Pfeifer dissented, saying the order was reasonable.

"[Talty] is being deprived of a constitutional right because he is a convicted felon, because the crime for which he was convicted directly related to the constitutional right, because he exercised the constitutional right irresponsibly, and because the deprivation of the constitutional right will make it less likely for him to commit again the offense of which he was convicted," he wrote.

County Assistant Prosecutor James R. Bennett II said the novel condition placed on Talty's sentence was Judge Kimbler's idea, but the prosecution supported it.

"The courts are faced with the problem of putting people who have refused to pay for children in prison where the kids don't get the support, or leave them out to create more victims," he said.

"We thought this was a reasonable way to deal with that," he said.

The case will return to Medina for resentencing.

"It's my hope, since Mr. Talty has obeyed every order the court has imposed and has been, as the judge has said, somewhat of a model probationer, that we will not have to discuss procreation at all," said Talty's attorney, J. Dean Carro.

He said Talty has been paying child support while under the watch of the probation office, but he is not in a position yet to pay off the full past-due amount. He has not fathered any children in the meantime, despite the fact that the nonprocreation order had been on hold while under appeal.

Chief Justice Moyer was joined in the majority by Justices Alice Robie Resnick, Francis Sweeney, Maureen O'Connor, and Terrence O'Donnell. Justice Pfeifer was joined in his dissent by Justice Evelyn Lundberg Stratton.

Contact Jim Provance at:
jprovance@theblade.com,
or 614-221-0496.

Permanent Link