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STATE OF INDIANA)

COUNTY OF ELKHART

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IN THE ELKHART SUPERIOR COURT


ROOM NO. 2
CAUSE NO.

JOHN DOE 1, JOHN DOE 2,


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on their own behalf and on behalf of a class )
of those similarly situated,
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Plaintiffs,
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v.
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THE ALLEN AND ELKHART COUNTY )
PROSECUTORS, on their own behalf and )
on behalf of a class of those similarly
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situated,
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THE SHERIFFS OF ALLEN AND
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ELKHART COUNTY, on their own behalf )
and on behalf of those similarly situated,
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Defendants.
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Complaint for Declaratory and Injunctive Relief Challenge to Constitutionality of Statute
Introduction
1. Indiana Code 35-42-4-14 (eff. July 1, 2015) provides that certain sex offenders, defined by the
statute as serious sex offenders, are prohibited from entering school property. This statute has a
number of serious effects, not the least of which is to ban these persons from going to worship in
churches, synagogues, mosques, or other religious buildings that are located on the same as
property parochial schools or certain preschool programming. Banning sex offenders from, for
example, church on Sunday, because there are students in a school on the same grounds on
Monday, is irrational and violates the due process of law protected by the Fourteenth
Amendment to the United States Constitution. It also violates Indianas newly enacted Religious
Freedom Restoration Act, Indiana Code 34-13-9-0.7, et seq. (eff. July 1, 2015), which prohibits
government from imposing a substantial burden on a persons exercise of religion absent a

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compelling governmental interest and a showing that the action is the least restrictive means to
further that interest.
This action is brought pursuant to Indiana law and 42 U.S.C. 1983 to seek appropriate

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injunctive and declaratory relief.


Parties
John Doe 1, a pseudonym, is an adult resident of Allen County, Indiana.
John Doe 2, a pseudonym, is and adult resident of Elkhart County, Indiana.
The Allen County Prosecutor is the duly elected prosecutor of Allen County, Indiana.
The Elkhart County Prosecutor is the duly elected prosecutor of Elkhart County, Indiana.
The Allen County Sheriff is the duly elected sheriff of Allen County, Indiana.
The Elkhart County Sheriff is the duly elected sheriff of Elkhart County, Indiana.
Class action allegations
Plaintiff class
John Doe 1 and John Doe 2 bring this action on their own behalf and on behalf of a class of those
similarly situated pursuant to Rule 23(A) and (B)(2) of the Indiana Rules of Trial Procedure with
the class defined as:
All serious sex offenders, as that term is defined by Indiana Code 35-42-414(a), who attend or will attend churches, temples, mosques or other religious
institutions that are also school property, as that term is defined by Indiana law.

9. As defined, all the requirements of Rule 23(A) of the Indiana Rules of Trial Procedure are met
with regard to this class. Specifically:
a.
The class is so numerous that joinder of all members is impracticable. The exact
size is unknown at the current time but is believed to be large.
b.
There are questions of law or fact common to the class, namely whether Indiana
Code 35-42-4-14 violates Indiana law and the United States Constitution as applied to
the plaintiffs and the putative plaintiff class when they are attending religious worship
and activities.
c.
The claims of the representative parties are typical of those of the class.
d.
The representative parties will fairly and adequately protect the interests of the
class.
10. The further requirement of Rule 23(B)(2) are met here in that at all times defendants have acted
and have failed to act on grounds generally applicable to the class, thereby making appropriate

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final injunctive relief or corresponding declaratory relief with respect to the class as a whole in
the event that plaintiffs prevail.
Defendant class of prosecutors
11. Plaintiffs request that this case be certified with a defendant class of those similarly situated
prosecutors pursuant to Rule 23(A) and (B)(2) of the Indiana Rules of Trial Procedure with the
class headed by the prosecutors of Allen and Elkhart counties. The proposed class is defined as:
All county prosecutors in Indiana.
12. As defined, all the requirements of Rule 23(A) of the Indiana Rules of Trial Procedure are met
with regard to this class. Specifically:
a.
The class is so numerous that joinder of all members is impracticable. There are
92 county prosecutors.
b.
There are questions of law or fact common to the class, namely whether Indiana
Code 35-42-4-14 violates Indiana law and the United States Constitution as applied to
the plaintiffs and the putative plaintiff class when they are attending religious worship
and activities.
c.
The claims of the representative parties are typical of those of the class.
d.
The representative parties will fairly and adequately protect the interests of the
class.
13. The further requirement of Rule 23(B)(2) are met with regard to this proposed class as at all
times this class has acted or refused to act on grounds generally applicable to the class, thereby
making appropriate final injunctive relief or corresponding declaratory relief with respect to the
class as a whole in the event that plaintiffs prevail.
Defendant class of sheriffs
14. Plaintiffs request that this case be certified as a defendant-class of those similarly situated
sheriffs pursuant to Rule 23(A) and (B)(2) of the Indiana Rules of Trial Procedure with the class
headed by the sheriffs of Allen and Elkhart counties with the class defined as:
All county sheriffs in Indiana.
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15. As defined all the requirements of Rule 23(A) of the Indiana Rules of Trial Procedure are met
with regard to this class. Specifically:
a.
The class is so numerous that joinder of all members is impracticable. There are
92 county sheriffs.
b.
There are questions of law or fact common to the class, namely whether Indiana
Code 35-42-4-14 violates Indiana law and the United States Constitution as applied to
the plaintiffs and the putative plaintiff class when they are attending religious worship
and activities.
c.
The claims of the representative parties are typical of those of the class.
d.
The representative parties will fairly and adequately protect the interests of the
class.
16. The further requirement of Rule 23(B)(2) are met with regard to this proposed class as at all
times this class has acted or refused to act on grounds generally applicable to the class, thereby
making appropriate final injunctive relief or corresponding declaratory relief with respect to the
class as a whole in the event that plaintiffs prevail.
Legal Background
17. Effective July 1, 2015, a new section has been added to the Indiana Code as Indiana Code 3542-4-14 that provides as follows:
(a)
As used in this section, serious sex offender means a person required to
register as a sex offender under IC 11-88- who is:
(1)
(2)

found to be a sexually violent predator under IC 35-38-1-7.5; or


convicted of one (1) or more of the following offenses:
(A)
Child molesting (IC 35-42-4-3).
(B)
Child exploitation (IC 35-42-4-4-(b)).
(C)
Possession of child pornography (IC 35-42-4-4(c)).
(D)
Vicarious sexual gratification (IC 35-42-4-5(a).
(E)
Performing sexual conduct in the presence of a minor (IC
35-42-4-5(c)).
(F)
Child solicitation (IC 35-42-4-6).
(G)
Child seduction (IC 35-42-4-7).
(H)
Sexual misconduct with a minor (IC 35-42-4-9).
(I)
A conspiracy of attempt to commit an offense described in
clauses (A) through (H).
(J)
An offense in another jurisdiction that is substantially
similar to an offense described in clauses (A) through (I).
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(b)
A serious sex offender who knowingly or intentionally enters school
property commits unlawful entry by a serious sex offender, a Level 6 felon.
18. Indiana Code 35-31.5-2-285 defines school property to mean:
(1)
A building or other structure owned or rented by:
(A)
a school corporation;
(B)
an entity that is required to be licensed under IC 12-17.2 or IC 3137;
(C)
a private school that is not supported and maintained by funds
realized from the imposition of a tax on property, income, or sales; or
(D)
a federal, state, local, or nonprofit program or service operated to
serve, assist, or otherwise benefit children who are at least three (3) years
of age and not yet enrolled in kindergarten, including the following:
(i)
A Head Start program under 42 U.S.C 9831 et seq.
(ii)
A special education preschool program.
(iii)
A developmental child care program for preschool children.
(2)
The grounds adjacent to and owned or rented in common with a building
or other structure described in subdivision (1).
19. Indianas Religious Freedom Restoration Act, Ind. Code 34-13-9-0.7, et seq.(eff. July 1, 2015)
(RFRA) applies to, inter alia, all statutes unless a state statute expressly exempts the statute . .
. from application of this chapter by citation to this chapter. Ind. Code 34-13-9-2.
20. RFRA applies to all governmental entities, including branches of state and local government.
Ind. Code 34-13-9-6.
21. Under RFRA, a governmental entity cannot substantially burden a persons religious exercise,
even if the burden arises from a rule of general applicability, unless the government establishes
that the burden is in furtherance of a compelling governmental interest and that it is the least
restrictive means of furthering the compelling governmental interest. Ind. Code 34-13-9-8.
Factual allegation
22. John Doe 1 was convicted of a sex offense against a child as a Class D felony and served a short
sentence in county jail.
23. He is not currently on probation or parole or any form of supervised release.
24. He is a registered sex offender pursuant to Indiana law and his offense makes him a serious sex
offender as that term is defined in Ind. Code 35-42-4-2-14(a).
25. He is Christian and regularly attends church on Sundays. His church is located in Fort Wayne,
Indiana.
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26. He also attends church events during evenings on days other than Sunday.
27. Attached to his church is a religious school for children from late elementary school through 8th
grade.
28. There is also a preschool at the church as well.
29. The school and preschool are not in session during the time the church meets on Sundays or
during the evening hours.
30. The church is school property as defined by Indiana Code 35-31.5-2-285.
31. Mr. Doe 1 and his wife selected this church for membership and attendance after much
searching. It is a comfortable and comforting place for himself and his family and provides a
unique sense of fulfillment and meaning that could not be easily replaced.
32. Mr. Doe 1 believes that being able to attend regular Sunday worship and the evening activities at
the church are essential to his exercise of religion. He desires to have the community experience
that only group worship can bring.
33. He has been informed by representatives of the Allen County Sheriffs Department, with whom
he is required to register as a sex offender pursuant to Indiana law, that because of Indiana Code
35-42-4-14 and the fact that his church contains a school he is no longer able to attend church.
34. He therefore cannot engage in the exercise of his religion and religious beliefs without risking
arrest from the Allen County Sheriff and prosecution by the Allen County Prosecutor.
35. He is not able to attend his church of choice because he does not want to commit a crime.
36. John Doe 2 was convicted of sex offenses against a minor in 2010.
37. He is a registered sex offender pursuant to Indiana law and his offense makes him a serious sex
offender as that term is defined in Ind. Code 35-42-4-2-14(a).
38. He is not currently on probation or parole or any form of supervised release.
39. He is Christian and regularly attends church on Sundays. His church is located in Elkhart
County.
40. He also attends events at the church during evenings on days other than Sunday.
41. Attached to his church is a religious school for children from kindergarten through the 12th
grade.
42. There is also a preschool at the church.
43. The school and preschool are not in session on Sundays or during evening hours.
44. The church is school property as defined by Indiana Code 35-31.5-2-285.
45. He views the community that he is able to obtain through group worship and fellowship as
essential to his religious beliefs and practices.
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46. It is particularly important to Mr. Doe 2 that he attend this church where he is now a member.
He went to this church after he first got out of Jail and he is deeply spiritually involved with this
church and the people in it.
47. In fact, when he was on parole his parole officer approved of him attending this church after
meeting with its pastor and other persons at the church.
48. This church is essential for him to be able to worship in the most meaningful way possible.
49. His church qualifies as a school under Indiana Code 35-31.5-2-285 and therefore, pursuant to
Indiana Code 35-42-4-14(b) he will commit a felony if he attends his church and if he engages
in this religious activity that he believes is of fundamental importance he will risk arrest from the
Elkhart County Sheriff and prosecution by the Elkhart County Prosecutor.
50. He is therefore not attending his church because he does not wish to commit a crime.
51. Indiana Code 35-42-4-14 substantially burdens the exercise of religion by plaintiffs and the
putative class that plaintiffs seek to represent.
52. Plaintiffs and the putative class they seek to represent are being caused irreparable harm for
which there is no adequate remedy at law.
53. The absolute ban contained in Indiana Code 35-42-4-14 is not the least restrictive means of
furthering any compelling governmental interest.
54. Denying persons the ability to attend communal religious worship and activities because in other
areas of the religious campus there is a school that is not meeting is not rational.
55. It is also not rational to ban serious sex offenders from worship because there is a school on the
religious campus while allowing serious sex offenders to attend worship that is attended by
children if the place of worship does not have a school attached.
56. At all times defendants have acted and have failed to act under color of state law.
Legal claims
57. Indiana Code 35-42-4-14 violates RFRA, Indiana Code 34-13-9-0.7, et seq., because it
substantially burdens the exercise of religion without a properly tailored justification.
58. Indiana Code 35-42-4-14 is fundamentally irrational and arbitrary in violation of the due
process clause of the Fourteenth Amendment to the United States Constitution.
Request for relief
WHEREFORE, plaintiffs request that this Court:
1.
Certify this case as a class action with a plaintiff class and defendant classes as
defined above.
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2.
Declare that Indiana Code 35-42-4-14 is both unlawful and unconstitutional for
the reasons noted above.
3.
Enter a preliminary injunction, later to be made permanent, enjoining Indiana
Code 35-42-4-14.
4.
Award plaintiffs their costs and reasonable attorneys fees pursuant to Indiana
Code 34-13-9-10(c) and 42 U.S.C. 1988.
5.

Award all other proper relief.


_________________________
Kenneth J. Falk
No. 6777-49
_________________________
Gavin M. Rose
No. 26565-53
ACLU of Indiana
1031 E. Washington St.
Indianapolis, IN 46202
317-635-4059
Fax: 317-635-4105
kfalk@aclu-in.org
grose@aclu-in.org
Attorneys for Plaintiffs and the Putative
Class

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