ILNews

COA: Park ban violates ex post facto laws

Back to TopCommentsE-mailPrintBookmark and Share

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.

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. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

ADVERTISEMENT