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 have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.