ILNews

Application of residency law unconstitutional

Rebecca Berfanger
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
 

The Indiana Court of Appeals today upheld a lower court's ruling that in at least one case of the state's application of a law prohibiting violent and child sex offenders from living within 1,000 feet of a school or public area where children congregate is unconstitutional.

The ruling came in State of Indiana v. Anthony W. Pollard, No. 05A02-0707-CR-640. Judges heard arguments in the case March 31. The state argued that Indiana Code Section 35-42-4-11 was not considered ex post facto law as applied to Anthony W. Pollard, but the appeals court disagreed and affirmed a ruling by Blackford Superior Judge John Forcum that dismissed the felony charge against him.

At the time of his April 4, 1997, criminal conviction of committing a sex-related offense against a child, Pollard's home was within 1,000 feet of a school property, a youth program center, or a public park. He was not required to move away from his home as part of his sentence or as a result of his conviction. At the time he had lived there for about 10 years. That was nearly 10 years before the sex-offender residency statute went into effect July 1, 2006.

He still lives in the same home. On Jan. 26, 2007, the state charged Pollard with a Class D felony sex-offender residency offense. On March 2, 2007, Pollard filed a motion to dismiss. The trial court granted Pollard's motion to dismiss June 21, 2007, determining that Indiana Code section 35-42-4-11 violated the ex post facto prohibition contained in Article 1, Section 24 of Indiana's Constitution as applied to Pollard, adding that the application of Indiana Code Section 35-42-4-11 served to retroactively increase the punishment for the crime committed.

The state appealed, but the Court of Appeals agreed with the trial court.

"While we cannot speak to the purpose of the residency statute, we can observe its unmistakable effect," wrote Judge Paul D. Mathias. "The residency statute clearly increases the penalty applied to affected sex offenders by preventing those offenders from residing and taking full advantage of their ownership rights in property acquired prior to conviction and prior to the imposition of the statute. In contrast, the registration statute does not implicate any fundamental rights; rather, it places only an administrative burden on offenders."

Judge Mathias continued, "The residency statute also impinges upon one of this country's most closely held rights, the right to property."

The opinion also examines other states' versions of the sex-offender residency restrictions.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

ADVERTISEMENT