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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. My situation was hopeless me and my husband was on the verge of divorce. I was in a awful state and felt that I was not able to cope with life any longer. I found out about this great spell caster drlawrencespelltemple@hotmail.com and tried him. Well, he did return and now we are doing well again, more than ever before. Thank you so much Drlawrencespelltemple@hotmail.comi will forever be grateful to you Drlawrencespelltemple@hotmail.com

  4. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  5. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

ADVERTISEMENT