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COA: Park ban violates ex post facto laws

June 9, 2009

Relying heavily on a recent Indiana Supreme Court decision regarding sex offenders and ex post facto laws, the Indiana Court of Appeals split in finding a city ordinance banning a convicted sex offender who no longer has to register with the state was punitive and unconstitutional as applied to him.

In Eric Dowdell v. City of Jeffersonville, No. 10A04-0811-CV-676, the appellate court used the recent rulings from the Supreme Court in Wallace v. State and another panel of the Court of Appeals in Doe v. Plainfield, 893 N.E.2d 1124 (Ind. Ct. App. 2008), which concerned a similar ordinance and is pending transfer.

Jeffersonville passed an ordinance in 2006 prohibiting sex offenders from entering public parks with very limited exemptions, such as to watch a minor relative play a sport. The sex offender must demonstrate good cause as to why he or she should be allowed into the park. Eric Dowdell was convicted of sexual battery in 1996, served his sentence, and was no longer required to register by the time the city passed the park ban. Dowdell sought a waiver to enter the park to be allowed to play a sport himself, which was denied twice by a City Court judge. He is appealing the denial of one of those requests.

Dowdell brought the suit for injunctive and declaratory relief, claiming the ordinance is facially unconstitutional and unconstitutional as applied to him. The trial court granted summary judgment in favor of the city.

Chief Judge John Baker and Judge Michael Barnes agreed with Dowdell and reversed summary judgment in favor of Jeffersonville. Although the majority declined to address his facial challenge because of the precedent set by Doe, it did find the ordinance to be unconstitutional as applied to him by using the seven factors set forth by the U.S. Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963).

The majority cited the Indiana Supreme Court's reasoning in Wallace to support their conclusion that six out of the seven factors - affirmative disability or restraint; sanctions that have historically been considered punishment; finding of scienter; traditional aims of punishment; application only to criminal behavior; and excessiveness - were punitive as applied to Dowdell.

The majority came to a different conclusion in some areas of the factors test than the panel that decided Doe, which the chief judge noted came down before Wallace was decided. The panel in Doe gave little or no weight to the factor of traditional aims of punishment, but this panel believed the factor is significant.

"We hold that as applied to Dowdell, the Ordinance violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed," wrote Chief Judge Baker.

Judge Terry Crone came to a different conclusion in his dissent when he weighed the seven factors and believed the ordinance to be constitutional when applied to Dowdell. He only found two to be punitive when applied in this situation. He noted that while he is somewhat troubled by the limited nature of the available exemption for convicted sex-offenders, there is a mechanism in which Dowdell and others can seek relief and appeal if they are denied.

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