A recent Indiana Appellate Court case upheld a lower court ruling in favor of theTown of Plainfieldwhich enacted anordinancein 2002 prohibiting persons listed on theIndiana sex and violent offender registryfrom entering itsparks and
recreational areas. The ordinance provided for a penalty of $100 to be assessed for the first violation with the penaltyincreasing to $200 for each additional violation.In November, 2005 Marion County resident John Doe filed suit against Plainfield seeking to have the ordinancedeclared to be in violation of the Indiana Constitutionand also requesting that Plainfield be ordered not to enforce the
ordinance. Doe was on the registry as a result of convictions in 2001 for child exploitation and possession of childpornography. He had been released from probation for those convictions in 2004 and had since both gained custody of his minor son and visited Plainfield's parks and recreation areas. In June, 2005 Doe was informed by the PlainfieldPolice Department that he was not permitted on the town's parks and recreation areas as a result of the ordinance.Doe argued that he had a right under the Indiana Constitution to enter public parks and recreation areas which wasviolated by the Plainfield ordinance. In upholding the lower court's ruling in favor of the ordinance, the Court determinedthat there is no specific right in the Indiana Constitution to enter public parks under its broad language providing for theright to "life, liberty and the pursuit of happiness".Doe argued further that excluding persons listed on the Registry from parks and recreations areas is not rationallyrelated to protecting the health and safety of other persons using these areas. He pointed out that using the Registry todetermine who may access the areas may cause persons no longer required to register to continue to be prohibitedsince there is no way for a person to have their name removed from the registry once entered in the absence of deathor the qualifying conviction being vacated.The Court addressed this argument, in part, as follows:
One way a person is designated as a sexually violent predator is by judicial finding after an evidentiary hearing, whichmust include testimony from psychologists or psychiatrists who are experts in criminal behavior disorders. See Ind.Code § 35-38-1-7.5(a) and (e); Marlett v. State, 878 N.E.2d 860, 871 (Ind. Ct. App. 2007), trans. denied. If a judicial finding has been made, the individual is defined by statute as a person “who suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly commit a sex offense.” Ind. Code § 35-38-1-7.5(a).We cannot say that excluding such individuals from Plainfield’s parks and recreation areas lacks a rational relationshipto Section 18’s goal.
Doe's final argument rested on the prohibition against ex post facto laws since the ordinance was enacted after he hadcommitted his crimes and been convicted for them. The ex post facto provision of the Indiana Constitution prohibits alaw from imposing a punishment for an act that was not punishable at the time it was committed or from imposingadditional punishment beyond the measure prescribed at the time.The Court noted that the ex post facto provision is applicable to criminal laws, but may also apply to non-criminal lawsdepending upon their purpose or effect. Doe maintained that the purpose and effect of the ordinance made it subject tothe ex post facto provision. The Court, after extensive analysis of the qualifying factors, disagreed and upheld the trialcourt's ruling in favor of the ordinance.The case discussed isJohn Doe vs. Town of Plainfield, No. 32A01-0803-CV-133 (Ind. Ct. App. Sept. 24, 2008).
1.) The information presented here is not legal advice, nor is it intended to be. Obtain private counsel of your choice for legal advice. Do not rely on this article to make decisions about what you choose to do, or not do, in any situation withwhich you are faced.2.) This article is intended merely to be informative concerning the material discussed. Caselaw is subject to beoverruled, modified, or otherwise vacated, and is also subject to varying interpretations by courts of law.Todd Corne,Prosecuting Attorneyhttp://warrickcountyprosecutor.blogspot.com© 2008 Todd Corne