Court News: Ordinance Directed at Sex Offenders Upheld

A recent Indiana Appellate Court case upheld a lower court ruling in favor of the Town of Plainfield which enacted an
ordinance in 2002 prohibiting persons listed on the Indiana sex and violent offender registry from entering its parks and
recreational areas. The ordinance provided for a penalty of $100 to be assessed for the first violation with the penalty
increasing to $200 for each additional violation.

In November, 2005 Marion County resident John Doe filed suit against Plainfield seeking to have the ordinance
declared to be in violation of the Indiana Constitution and also requesting that Plainfield be ordered not to enforce the
ordinance. Doe was on the registry as a result of convictions in 2001 for child exploitation and possession of child
pornography. He had been released from probation for those convictions in 2004 and had since both gained custody of
his minor son and visited Plainfield's parks and recreation areas. In June, 2005 Doe was informed by the Plainfield
Police Department that he was not permitted on the town's parks and recreation areas as a result of the ordinance.

Doe argued that he had a right under the Indiana Constitution to enter public parks and recreation areas which was
violated by the Plainfield ordinance. In upholding the lower court's ruling in favor of the ordinance, the Court determined
that there is no specific right in the Indiana Constitution to enter public parks under its broad language providing for the
right to "life, liberty and the pursuit of happiness".

Doe argued further that excluding persons listed on the Registry from parks and recreations areas is not rationally
related to protecting the health and safety of other persons using these areas. He pointed out that using the Registry to
determine who may access the areas may cause persons no longer required to register to continue to be prohibited
since there is no way for a person to have their name removed from the registry once entered in the absence of death
or the qualifying conviction being vacated.

The Court addressed this argument, in part, as follows:

One way a person is designated as a sexually violent predator is by judicial finding after an evidentiary hearing, which
must include testimony from psychologists or psychiatrists who are experts in criminal behavior disorders. See Ind.
Code § 35-38-1-7.5(a) and (e); Marlett v. State, 878 N.E.2d 860, 871 (Ind. Ct. App. 2007), trans. denied. If a judicial
finding has been made, the individual is defined by statute as a person “who suffers from a mental abnormality or
personality disorder that makes the individual likely to repeatedly commit a sex offense.” Ind. Code § 35-38-1-7.5(a).
We cannot say that excluding such individuals from Plainfield’s parks and recreation areas lacks a rational relationship
to Section 18’s goal.

Doe's final argument rested on the prohibition against ex post facto laws since the ordinance was enacted after he had
committed his crimes and been convicted for them. The ex post facto provision of the Indiana Constitution prohibits a
law from imposing a punishment for an act that was not punishable at the time it was committed or from imposing
additional punishment beyond the measure prescribed at the time.

The Court noted that the ex post facto provision is applicable to criminal laws, but may also apply to non-criminal laws
depending upon their purpose or effect. Doe maintained that the purpose and effect of the ordinance made it subject to
the ex post facto provision. The Court, after extensive analysis of the qualifying factors, disagreed and upheld the trial
court's ruling in favor of the ordinance.

The case discussed is John Doe vs. Town of Plainfield, No. 32A01-0803-CV-133 (Ind. Ct. App. Sept. 24, 2008).

Disclaimer:

1.) The information presented here is not legal advice, nor is it intended to be. Obtain private counsel of your choice for
legal advice. Do not rely on this article to make decisions about what you choose to do, or not do, in any situation with
which you are faced.

2.) This article is intended merely to be informative concerning the material discussed. Caselaw is subject to be
overruled, modified, or otherwise vacated, and is also subject to varying interpretations by courts of law.

Todd Corne,
Prosecuting Attorney

http://warrickcountyprosecutor.blogspot.com

© 2008 Todd Corne