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Court: Man may be classified as sexually violent predator

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The Indiana Supreme Court ruled 4-1 that classifying a man as a sexually violent predator due to an amendment to the Sex Offender Registration Act doesn’t violate Indiana’s prohibition of ex post facto laws or the doctrine of separation of powers.

Michael Harris challenged being classified as a sexually violent predator and the requirement that he must register for life instead of 10 years. When he pleaded guilty to Class B felony child molesting in April 1999, “sexually violent predator” status did not exist. He was required to register for 10 years on the sex offender registry after his release from prison. He was released in December 2008.

Based on a 2007 amendment to the Indiana Sex Offender Registration Act, the Department of Correction notified Harris that he was required to register as a sexually violent predator and register for life. The 2007 amendment says “a person is an SVP ‘by operation of law if an offense committed by the person [is a qualifying offense] and the person was released from incarceration, secure detention, or probation for the offense after June 30, 1994.’”

He filed suit while still incarcerated. The trial court ruled in favor of Harris, granting a declaratory judgment and injunctive relief, thereby removing his SVP status. The Indiana Court of Appeals affirmed.

In Bruce Lemmon, et al. v. Michael L. Harris, No. 52S02-1011-CV-642, the justices ruled on June 28 that based on the plain language of the statute, the amendment applies to Harris. Using the seven factors outlined in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), the majority found the first three factors – whether the sanction involves an affirmative disability or restraint; whether it has historically been regarded as punishment; and whether it comes into play only on a finding of scienter – lean in favor of treating the act as punitive. But the last four factors – whether its operation will promote the traditional aims of punishment; whether the behavior to which it applies is already a crime; whether an alternative purpose to which it may rationally be connected is assignable for it; and whether it appears excessive in relation to the alternative purpose assigned – lean in favor of treating the act as nonpunitive when applied to Harris, wrote Justice Frank Sullivan.

Justice Brent Dickson dissented on this issue, citing former Justice Theodore Boehm’s dissent in Jensen v. State, 905 N.E.2d 384, 396-98 (Ind. 2009). Justice Dickson believed the reclassification and resulting enhanced requirements under the 2007 amendment constitute additional punishments when applied to Harris.

The high court also addressed an issue recently raised in Ohio but not yet discussed here: whether the act violates the constitutional principle of separation of powers. The Ohio State Supreme Court ruled on a similar issue, finding certain provisions unconstitutional in that state’s Adam Walsh Act that required the attorney general to reclassify sex offenders who had already been classified by court order under a former law.

But Indiana’s “by operation of law” clause doesn’t work to reopen a final judgment. Harris’ case isn’t one where the sentencing court considered expert testimony and expressly refused to classify him as an SVP. The clause did not change a judicial determination that Harris was not an SVP to him being one. Nor does the clause remove the judiciary’s discretionary function in sentencing and place it with the DOC, wrote Justice Sullivan.

“The statute does not grant the DOC any authority to classify or reclassify. SVP status under Indiana Code section 35-38-1-7.5(b) is determined by the statute itself,” he wrote, pointing out that offenders may petition the court to remove his or her designation or to make the registration requirement less restrictive by filing a petition in court.

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  1. How nice, on the day of my car accident on the way to work at the Indiana Supreme Court. Unlike the others, I did not steal any money or do ANYTHING unethical whatsoever. I am suing the Indiana Supreme Court and appealed the failure of the district court in SDIN to protect me. I am suing the federal judge because she failed to protect me and her abandonment of jurisdiction leaves her open to lawsuits because she stripped herself of immunity. I am a candidate for Indiana Supreme Court justice, and they imposed just enough sanction so that I am made ineligible. I am asking the 7th Circuit to remove all of them and appoint me as the new Chief Justice of Indiana. That's what they get for dishonoring my sacrifice and and violating the ADA in about 50 different ways.

  2. Can anyone please help this mother and child? We can all discuss the mother's rights, child's rights when this court only considered the father's rights. It is actually scarey to think a man like this even being a father period with custody of this child. I don't believe any of his other children would have anything good to say about him being their father! How many people are afraid to say anything or try to help because they are afraid of Carl. He's a bully and that his how he gets his way. Please someone help this mother and child. There has to be someone that has the heart and the means to help this family.

  3. I enrolled America's 1st tax-free Health Savings Account (HSA) so you can trust me. I bet 1/3 of my clients were lawyers because they love tax-free deposits, growth and withdrawals or total tax freedom. Most of the time (always) these clients are uninformed about insurance law. Employer-based health insurance is simple if you read the policy. It says, Employers (lawyers) and employees who are working 30-hours-per-week are ELIGIBLE for insurance. Then I show the lawyer the TERMINATION clause which states: When you are no longer ELIGIBLE! Then I ask a closing question (sales term) to the lawyer which is, "If you have a stroke or cancer and become too sick to work can you keep your health insurance?" If the lawyer had dependent children they needed a "Dependent Conversion Privilege" in case their child got sick or hurt which the lawyers never had. Lawyers are pretty easy sales. Save premium, eliminate taxes and build wealth!

  4. Ok, so cheap laughs made about the Christian Right. hardiharhar ... All kidding aside, it is Mohammad's followers who you should be seeking divine protection from. Allahu Akbar But progressives are in denial about that, even as Europe crumbles.

  5. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

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