COA: Park ban violates ex post facto laws

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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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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.