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‘The State is the State’ and they share the same fate, Supreme Court rules

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The Indiana Department of Correction’s motion to obligate a convicted sex offender to continue registering was blocked by the Indiana Supreme Court on the grounds that “the State is the State.”

The Indiana Supreme Court reversed the trial court’s order granting the DOC’s motion to correct error in Ronald G. Becker v. State of Indiana, 45S03-1301-CR-9. It ruled res judicata barred DOC from bringing the motion because the department and the county prosecutor are in privity as “the State.”

After being convicted of criminal deviate conduct, a Class B felony, Ronald Becker was initially required to register annually as a sex offender for 10 years. However, after the Legislature amended the state, Becker was classified as a sexually violent predator and required register every 90 days for his lifetime.

Becker petitioned to be relieved from the additional SVP obligations, arguing they were an unconstitutional ex post facto law as applied to him. The court agreed and ordered in 2008 that classifying him retroactively as an SVP was unconstitutional. The prosecutor did not appeal the order and the DOC did not intervene to challenge it.

Later, the state entered into an Agreed Order, saying that Becker had satisfied his registration obligations under the 10-year statute and was no longer required to register.

Less than two weeks later, the Indiana Supreme Court ruled on Lemmon v. Harris, 949 N.E. 2d 803 (Ind. 2011), which rejected an ex post facto argument. The Indiana Attorney General subsequently intervened on behalf of the DOC, arguing Becker’s registration obligation from 10 years to life was not an ex post facto violation.

The trial court granted the DOC motion to correct error and ordered Becker to register every three months for the rest of his life.

In its review, the Supreme Court concluded the DOC’s interests were represented by the local prosecutor and, therefore, they are in privity for purposes of res judicata. Therefore, the 2008 Order is binding against the DOC.

“If the res judicata shoe were on the other food in this case, Becker would be hard-pressed to avoid its preclusive effects,” Justice Loretta Rush wrote for the court. “There is, after all, only one of him, with no alter egos to intervene on his behalf if a law later changed in a way favorable to his position. Final judgments in a criminal case should be similarly binding against ‘the State’ – not just the prosecutor, but also the various alter egos of the State whose substantial interests are adequately represented by the prosecutor.”

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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