ILNews

COA rules on re-registration of offenders

Back to TopE-mailPrintBookmark and Share

Two sex offenders serving or who had completed their 10-year registration period shouldn't have been required to re-register for another 10-year period after being convicted of any other crime, the Indiana Court of Appeals concluded today.

In Michael Greer and John Maggi, on their own behalf and on behalf a class of those similarly situated v. Edwin Buss, et al., No. 49A02-0903-CV-243, the appellate court found the Marion Superior Court erred in granting summary judgment for Edwin Buss, Commissioner of the Indiana Department of Correction, and other defendants in Michael Greer and John Maggi's suit arguing that they didn't have to re-register as sex offenders for a second 10-year period.

The two filed for a proposed class action lawsuit seeking declaratory and injunctive relief with respect to the DOC's policy that individuals convicted of certain sex or violent offenses requiring a 10-year registration period must re-register for another 10 years if convicted for any criminal offense.

Greer was convicted of child molesting in 1991, registered as a sex offender in 1996, and was no longer required to register in February 2006 because the 10-year period expired. Several months later, he was convicted of a drunken driving charge and told by the DOC he had to re-register as a sex offender until November 2016. Because he had to re-register, he wasn't able find a place to live that wasn't within 1,000 feet of where children congregate.

Maggi was convicted of possessing child pornography in Illinois in 1998 and registered in Indiana in 2003 when he moved here. He pleaded guilty to a drunken driving offense in 2004 and was told in 2008, after his 10-year registration period had ended, that he had to re-register for another 10-year period because of the 2004 conviction.

The statute requiring registration for 10 years changed July 1, 2008, which added language about an offender having to re-register if they are convicted of a sex or violent crime after their original registration period ended.

It could be argued that prior to the addition of that language, the statute required registration upon a subsequent conviction for any offense or for an offense that itself required registration under the statute, wrote Judge Carr Darden. But using the rule of lenity, the appellate court concluded prior to the amendment, the statutory provision didn't specify that registration would be triggered for another 10-year period upon any future conviction.

"This leads to the logical conclusion that an offender was only required to register again after completion of the ten-year registration period upon conviction for an offense for which the statute requires registration," wrote Judge Darden.

In addition, to interpret the statute as the DOC does would violate the prohibition on ex post facto laws with regards to Greer and Maggi.

The Court of Appeals also disagreed with the trial court decision that declaratory judgment wasn't appropriate because Greer and Maggi could bring their challenges against the statute as a defense if they're prosecuted for failing to register. A plaintiff doesn't have to expose himself to actual arrest or prosecution to be entitled to challenge a statute that may deter him of his constitutional rights.

The appellate judges did affirm denial of the class action certification because the plaintiffs failed to show "representativeness" and Greer and Maggi have factual and legal issues that separate them from others.

ADVERTISEMENT

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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

ADVERTISEMENT