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Divided COA: Amendment bars sex offender from son’s school activities

March 4, 2019

A registered sex offender previously able to attend his son’s school activities per a trial court-granted request was denied that exception Monday when the Indiana Court of Appeals determined an amended statute barred him from entering school property.

Upon pleading guilty to child solicitation in 2010, Douglas Kirby received a 10-year sex-offender registration requirement and an 18-month sentence, suspended to probation. Although his probation conditions forbade Kirby from entering schools, he received an exception to attend his son’s school activities.

Three years after completing probation, however, Indiana Code section 35-42-4-14 made it a Level 6 felony for a “serious sex offender” to knowingly or intentionally enter school property. At that time, Kirby was still attending his son’s school events but ultimately had to stop, as child solicitation was a qualifying offense under the statute. A post conviction court denied Kirby’s request for relief when he argued that he did not “knowingly” plead guilty because he didn’t know at that time that he would be eventually barred from entering school property. He further asserted that the new statute was an unconstitutional ex post facto law because it added punishment to an already-committed crime.

When Kirby filed a declaratory judgment action, Howard Superior Court found the statute unconstitutional as applied to his circumstances after noting that he had been previously able to attend his son’s school functions and sporting events before the statute’s amendment.

But an Indiana Court of Appeals reversed that judgment when it found the statue was not unconstitutional under the “intent-effects” test in State of Indiana v. Douglas Kirby, 18A-PL-2334.

In analyzing the firsts step of the test as to whether the Indiana General Assembly intended to impose punishment, the appellate court found the purpose of the statute to be a civil, regulatory, nonpunitive scheme based on McVey v. State, 56 N.E.3d 674, 679 (Ind. Ct. App. 2016). It thus found all factors of the test as punitive to Kirby, specifically noting that the seventh factor of the test weighed most heavily regarding excessiveness in relation to the state’s articulated purpose.

“The purpose of this Statute is to prevent those who commit qualifying sex offenses and, therefore, are required to register as sex offenders, from entering school grounds where children are present,” Judge Elizabeth Tavitas wrote for the majority joined by Judge Melissa May. “The purpose of the Statute is to safeguard children from potential sexual predators, which outweighs Kirby’s interests in attending school functions.

“For completeness, we emphasize that the exception to Kirby’s probation conditions entered by the trial court, which allowed Kirby to attend certain school activities in which his son and grandchildren participated, should not be a basis for finding that the Statute is unconstitutional as applied to Kirby,” Tavitas continued.

However, Judge John Baker dissented in a separate opinion, arguing the statute unconstitutional regarding Kirby, amounting to retroactive punishment in violation of the ex post facto clause of the Indiana Constitution.

“I see the logic in the majority’s reasoning that a school can limit its visitors, yet a school presumably does not limit parental attendance at a child’s activities for which parents are welcomed or encouraged to attend,” Baker opined. “In other words, the effect of this Statute to Kirby is not minor.”

Baker further noted that at the time of Kirby’s sentencing, he was explicitly granted permission to enter school property to observe activates involving his son, and that he had done so in the five years prior to the statute’s amendment. 

“While I understand the majority’s position regarding this factor, I find that to suddenly deny Kirby the opportunity to attend his son’s activities — which he could do while completing his punishment through probation — only because of his prior conviction is excessive,” Baker wrote.

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