Divided 7th Circuit reverses order to remove sex offender names for ‘right to travel’ violation but remands equal-protection claim

Editor’s note: This story has been updated with comments from Indiana Attorney General Todd Rokita.

A split en banc 7th Circuit Court of Appeals has reversed a decision from an original three-judge panel that ordered the removal of six names from the Indiana sex offender registry, finding that the state’s sex offender registration law doesn’t discriminate based on residency. However, the case was remanded for further consideration of an equal-protection claim.

Judge Amy St. Eve — a member of the original panel who dissented from the January ruling — wrote for the en banc majority Monday in Brian Hope, et al. v. Commissioner of Indiana Department of Correction, et al., 19-2523. She was joined by Chief Judge Diane Sykes and judges Frank Easterbrook, Michael Kanne, Michael Brennan, Michael Scudder and Thomas Kirsch.

Judge Ilana Rovner penned a partial dissent, which was joined by judges Diane Wood and David Hamilton.

Sex offenders in Indiana are required to register at least once per year in every county where they live, work or study under Indiana’s Sex Offender Registration Act. The law, known as SORA, went into effect in 1994 and was amended in 1996 to require registration by anyone convicted elsewhere of a state offense that was “substantially equivalent” to an Indiana offense requiring registration.

SORA was amended again in 2006, this time to apply to a “person who is required to register as a sex offender in any jurisdiction.” But offenders convicted pre-SORA don’t have to register as such, pursuant to the Indiana Supreme Court’s holding in Wallace v. State, 905 N.E.2d 371 (Ind. 2009).

According to the 7th Circuit, if an offender was under no registration requirement before SORA’s passage, courts have held that imposing a registration requirement in the first instance is impermissibly punitive. But that’s not the case for sex offenders who were previously required to register in another state. For those individuals, being required to register as a sex offender in Indiana isn’t punitive.

“Indiana caselaw thus has the peculiar effect of permitting the State to treat similarly situated offenders differently based solely on whether an offender had an out-of-state registration obligation,” St. Eve wrote Monday.

The case was brought on behalf of six sex offenders living in Indiana who were convicted before SORA.

Brian Hope, Gary Snider, Joseph Standish, Adam Bash, Patrick Rice and Scott Rush challenged the constitutionality of SORA, arguing that it violated their rights to travel under the privileges or immunities clause, their rights to equal protection under the 14th Amendment and Article I’s prohibition on ex post facto laws. The men also argued that absent their out-of-state registration obligations, Indiana’s Constitution would prohibit SORA’s application to them in the Hoosier State.

Indiana Southern District Court Judge Richard Young previously granted summary judgment to Hope and Snider, and their case was consolidated with one brought by Rice, Bash and Rush. The 7th Circuit panel affirmed in January, ordering the removal of the men’s names from the sex offender registry. Rovner authored the January majority opinion, in which she was joined by Wood.

But in its Monday decision, the en banc majority of the 7th Circuit reversed for the state, holding that SORA doesn’t violate the right to travel because it doesn’t expressly discriminate based on residency. It also held that SORA is not “so punitive either in purpose or effect” as to surmount Indiana’s nonpunitive intent for the law.

“But because the district court did not address whether SORA passes rational basis scrutiny under an equal protection analysis, we remand for consideration of the equal protection claim,” the majority wrote.

In its analysis, the 7th Circuit majority found that while SORA may affect newer residents disproportionately, it doesn’t discriminate based on residency. However, it agreed with the plaintiffs that the right to travel should be understood to go beyond prohibiting only durational-residency requirements that place a waiting period on benefits.

“The dissent takes issue with this feature of SORA but concedes that unlike (Saenz v. Roe, 526 U.S. 489, 500 (1999)) and its predecessors, SORA has neither a durational-residency requirement nor a true, fixed point residency scheme. That distinction is fatal to the plaintiffs’ claim,” St. Eve wrote. “Right to travel violations under the third component of the right exist only when a law expressly differentiates between residents based on their length or timing of residency. SORA does neither.”

The majority also found the dissent’s approach to the issue expands the right to travel to “an unprecedented extent” through a legal analysis that “the Court has rejected repeatedly in the analogous Fourteenth Amendment equal protection context.”

“The Privileges or Immunities Clause of the Fourteenth Amendment simply does not prohibit a state from incidentally burdening travel to or from the state. … Because both old and new Indiana residents are treated equally under SORA and Indiana’s Ex Post Facto Clause, we hold that the law does not violate plaintiffs’ right to travel,” it wrote.

But the majority remanded to the district court for the purpose of addressing whether SORA satisfies rational basis review.

“In doing so, we stress that this review should be undertaken with care and that the district court should thoroughly develop the factual record on this score. Rational basis review favors the State but does not ensure an automatic win,” St. Eve cautioned.

Lastly, the majority held that because SORA is not a punitive statute, it doesn’t violate the federal ex post facto clause. It found the men were unable to carry their heavy burden of proving that SORA is so punitive in effect as to override the Indiana Legislature’s intent to enact a civil law.

Judge Scudder concurred but wrote separately to opine that rather than stopping short of fixing the tension of the 7th Circuit’s caselaw, its Aug. 16 opinion should be used to align with Supreme Court precedent.

“There is no question that the obligations imposed by Indiana’s SORA on the six plaintiffs in this case apply retroactively, and we should use today’s decision to say so,” Scudder wrote.

Indiana Attorney General Todd Rokita released a statement Tuesday praising the 7th Circuit majority’s holding.

“Indiana’s sex offender registry is designed to protect children, families and all Hoosiers from those who have committed sex offenses,” Rokita said. “The appeals court was right to reject claims that Indiana’s system is unfair or wrongly discriminatory.

“We will continue to defend Indiana law,” he continued. “And we will continue to advocate for protecting Hoosiers from sex offenders.”

But Judge Rovner, joined by judges Wood and Hamilton, said she remains convinced that Indiana’s other-jurisdiction provision deprives the plaintiffs of state citizenship on equal terms with other Indiana residents and, in doing so, violates their rights to travel.

“It is thus only their travel — in this case, relocation from another state to Indiana — that renders them subject to a registration obligation in Indiana,” Rovner wrote. “This sets up the very sort of tiered classes of state citizenship that the Supreme Court’s travel jurisprudence forbids.

“… None of the six plaintiffs in this case has done a single thing to distinguish himself from a similarly-situated Indiana offender who, by virtue of the timing of his residency in Indiana, cannot be required to register under Wallace except relocate (i.e., travel) from another state that had different registration rules. The right to travel, as conceived and applied by the Supreme Court, forbids such inconsistent and discriminatory treatment of Indiana’s citizens,” the dissent continued.

“The express logic, if not the fact-specific holdings, of the Supreme Court’s right-to-travel precedents, call upon us to affirm the district court’s decision to grant the plaintiffs declaratory and injunctive relief on this point.”

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