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Wednesday, August 19, 2009

Ind. Decisions - "Indiana Supreme Court asked for clarity on local sex offender restrictions"

"Ruling in Plainfield's case considered key for Indiana communities with similar rules" was the headline to a story Sept. 25, 2008 quoted in this ILB entry. The Sept. 24th Court of Appeals opinion was in the case of John Doe v. Town of Plainfield, Indiana.

Doe's petition for transfer was filed Oct. 23, 2008. The Supreme Court has not yet acted on the petition.

Charles Wilson of the AP has written a comprehensive story on the appeal effort. The Louisville Courier Journal has a complete version of the story, dated Aug. 18th. Some quotes:

The Indiana Supreme Court has been asked to prevent an Indianapolis suburb from banning sex offenders from public parks in a case that could expand a trend of state court rulings finding constitutional problems with restrictions on sex offenders.

The American Civil Liberties Union of Indiana appealed a state Court of Appeals ruling that upheld Plainfield's ban last September. So far the high court hasn't said whether it will hear the case brought by a sex offender listed only as John Doe in court documents.

The case could join a handful of recent Indiana rulings on laws that restrict sex offenders' activities after they've done their time, including one in Jeffersonville.

The Jeffersonville case is Eric Dowdell v. City of Jeffersonville. See this June 10th ILB entry. More from Wilson's story:
Last month, the Supreme Court ruled that a state law that prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth program center could not be used to force a sex offender to move from a home where he had lived for 20 years. In April, the high court overturned a man's conviction for not registering as a sex offender because he had already completed a sentence for child molestation before the state's Sex Offender Registration Act was passed.

And in the Jeffersonville case, the Supreme Court has been asked to review a Court of Appeals ruling in June that found Jeffersonville officials unconstitutionally applied a park ban against a man who no longer was required to register as an offender.

Joel Schumm, a professor at the Indiana University School of Law in Indianapolis, said Indiana appears to be more willing to consider such cases than other states where similar bans are generally upheld.

“The court's shown a willingness to take a hard and thoughtful look at these kinds of cases,” he said.

Schumm said the ACLU of Indiana is simply asking the court to take the “next step” in restricting such ordinances by finding that Plainfield's ban also violates a state constitutional prohibition on excessive punishment.

Besides arguing that the ordinance retroactively increased the penalty for the plaintiff's original offense, the ACLU contends that the use of public parks is a constitutionally protected “core value” that all citizens have the right to enjoy unless they forfeit that right by committing a crime in a park.

The Supreme Court decision was State of Indiana v. Anthony W. Pollard, from July 1st. See this ILB entry from July 4th for background. More from the AP story:
Supporters of similar bans argue the ordinances are needed to protect children because sex offenders have a high risk of repeat offenses. Opponents like the ACLU argue that the bans often unconstitutionally continue to punish individuals who already have served prison sentences and probation. * * *

The plaintiff in the ACLU case was convicted in 2001 for child exploitation and possession of child pornography. He was released from probation in August 2004. He was visiting the Splash Island water park with his young son in June 2005, when police warned him not to return because he was listed on the sex offender registry.

“Our view is you can go anywhere you want to go, just not the park,” [attorney Mel Daniel, who handled the appeal for Plainfield] said.

Falk countered: “There are lots of public places. Do we ban people from sidewalks? Do we ban people from public buildings?”

The Supreme Court's decision in the case could affect other Indiana communities. Officials in Lebanon, about 25 miles northwest of Indianapolis, are contemplating a park ban [ILB -see this entry from July 16th], and the ACLU has put its lawsuit on hold against the Indianapolis suburb of Greenwood, which bans people convicted of certain sex-related and drug-related offenses from its parks.

More litigation will likely ensue until the high court clarifies the law, and it should “settle the law so that every community in Indiana will understand that the law is settled,” the ACLU said in court documents.

The Plainfield case has been awaiting transfer to the high court for nine months, which is unusually long, said Schumm, the university professor. That might indicate the court is preparing an opinion or having trouble agreeing on what to do, he said.

If the Supreme Court doesn't hear the case, the Court of Appeals ruling upholding Plainfield's ordinance stands. If it does hear the case, the Supreme Court could reverse, uphold or modify the decision.

For more, see this Oct. 31, 2008 ILB entry and this one from Sept. 25, 2008, both headed "Ruling in Plainfield's case considered key for Indiana communities with similar rules", quoting an Indy Star story.

Today Sophia Voravong of the Lafayette Journal Courier has this story, headed "Plainfield case may clarify rules for Ind. sex offenders." Some quotes:

A Supreme Court decision could expand on a series of recent rulings that found constitutional problems with various restrictions on convicted sex offenders.

Several rulings dealt with legislation, passed in 2006, that prohibits offenders against children from living within 1,000 feet of a school, public park or youth program center.

The Supreme Court last month found that the residency restriction violated the Indiana Constitution by retroactively punishing a Blackford County sex offender.

In February 2000, Lafayette banned a three-time convicted child molester from all city public school and park properties.

This came after the man, identified only as John Doe in court documents, admitted during a group therapy session that he had visited Murdock Park, watched children and had sexual fantasies.

Doe filed a lawsuit on grounds that the ban violated his First Amendment rights. The 7th Circuit Court of Appeals later ruled in Lafayette's favor.

It's unclear whether a Supreme Court decision in the Plainfield case would have any impact on Lafayette's John Doe. The ban was related only to Doe as an individual, Mayor Tony Roswarski said Tuesday.

City attorney Ed Chosnek said Lafayette has a trespassing ordinance that serves as a guideline when deciding if someone will be banned from public parks.

The ILB last wrote about the 7th Circuit's City of Lafayette decision on May 5th, in an entry headed "The tricky sex offender case that could trip up one of the judges on the short list to replace Souter."

Posted by Marcia Oddi on August 19, 2009 08:21 AM
Posted to Ind. App.Ct. Decisions