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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. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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