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COA declines ruling on constitutionality of plan

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The Indiana Court of Appeals declined to address the constitutionality of a Department of Correction program for sex offenders based on the deficient record before it and because the appellate court could decide the case without ruling on the constitutionality of the program.

The Indiana Public Defender Council and State of Indiana, which together filed a brief of amici curiae, urged the court to examine the constitutionality of the DOC's Sex Offender Management and Monitory Treatment Plan (SOMM).

In State of Indiana and Indiana Department of Correction v. Timothy Moore,  No. 29A02-0811-CR-1039, Timothy Moore appealed based on the application of Indiana Trial Rules in his case. He was found guilty of child molesting and was required to participate in SOMM and a Sex Offender Containment and Accountability Program. Both required him to admit guilt and take polygraph tests. Moore had reservations about these parts of the programs because he maintained his innocence throughout the proceedings and had a pending petition for post-conviction relief. Moore worried the tests would violate his Fifth Amendment right against self-incrimination.

The DOC demoted his credit class, prohibited him from completing his GED requirement, and changed his visitation rights as a result of Moore's unwillingness to take the polygraph tests or admit guilt. He filed a motion for restoration of his credit time and DOC privileges; the trial court granted his motion after it didn't receive a response from the DOC to the motion within 45 days. Later the DOC's motion to intervene and correct error was granted.

The issue in this case is whether Moore raised a challenge to only the disciplinary actions or whether his challenge is rooted in the Fifth Amendment. His motion did challenge the deprivation of rights and various privileges, but his attorney had previously challenged the deprivation of his Fifth Amendment right under the DOC's SOMM policies, wrote Senior Judge John Sharpnack.

"DOC cannot violate a prisoner's constitutional right against self-incrimination under the Fifth Amendment, impose sanctions because the prisoner asserts his rights, and then hide behind the shibboleth of 'no review of prison disciplinary matters,'" wrote the judge. "We conclude that the trial court had subject matter jurisdiction to review the deprivation of Moore's credit time and privileges after such deprivation occurred pursuant to Moore's claim of his Fifth Amendment right against self-incrimination."

The Court of Appeals agreed with the DOC argument that its appeal from the trial court's belated grant of its motion to correct error was valid based on Homeq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind. 2008), and Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285, 289 (Ind. 2000). However, the motion was entirely premised on the trial court's alleged lack of subject matter jurisdiction; but because it did have subject matter jurisdiction, the trial court erroneously granted DOC's motion to correct errors, wrote Senior Judge Sharpnack.

The appellate court also ruled DOC wasn't denied due process because it received notice in sufficient time to intervene and be heard.

The IDPC wanted the Court of Appeals to develop a "bright line" rule pertaining to the DOC's implementation of SOMM, but the appellate court declined. In a footnote, Senior Judge Sharpnack wrote that it appears the SOMM is similar to programs found unconstitutional in other states. But because of the deficient record before it and because the case could be decided on a clear nonconstitutional basis, the appellate court declined to rule on the constitutionality of the program.

The case was remanded with instructions the trial court vacate its grant of the motion to correct error and reinstate the original order in favor of Moore.

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  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.

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