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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

ADVERTISEMENT