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Tuesday, June 09, 2009

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

Eric Dowdell v. City of Jeffersonville , a 27-page, 2-1 opinion, Chief Judge Baker writes:

At issue herein is an ordinance that prohibits convicted sex offenders from entering public parks in Jeffersonville. Though offenders may seek very limited exemptions, the exemption procedure is extraordinarily burdensome and virtually illusory. The defendant was charged, convicted, served the sentence for his crime, and completed his registration requirement before the ordinance was enacted. As applied to this defendant, we find that the ordinance violates the prohibition on ex post facto laws contained in the Indiana Constitution.

Appellant-defendant Eric Dowdell appeals the trial court‘s order entering summary judgment in favor of appellee-defendant City of Jeffersonville, Indiana (the City) on Dowdell‘s complaint for injunctive and declaratory relief. Dowdell argues that the trial court erred by concluding that the City‘s ordinance prohibiting all sex offenders from ever having unrestricted access to the City‘s parks and recreation areas is constitutional. Specifically, Dowdell argues that the ordinance is facially unconstitutional pursuant to Article I, Sections 1, 12, and 24 of the Indiana Constitution and that it is unconstitutional as applied to him pursuant to the same constitutional provisions because he is no longer required to register as a sex offender. Finding that the ordinance is unconstitutional as applied to Dowdell, we reverse. * * *

II. Facial Challenge

In large part, Dowdell‘s facial challenge relies upon arguments that are identical to those made in Doe v. Plainfield, which concerned a Plainfield ordinance very similar to the Ordinance at issue herein. 893 N.E.2d 1124 (Ind. Ct. App. 2008), trans. pending. At oral argument, Dowdell‘s counsel acknowledged that though he disagreed with the result in Doe, he is bound by its precedential value. Under these circumstances, we decline to address Dowdell‘s facial challenge and will instead turn to his argument that the Ordinance is unconstitutional as applied to him.

III. As Applied

Dowdell raises a new argument not considered by the Doe court, namely, that the Ordinance is unconstitutional as applied to him. Unlike a facial challenge, an as applied challenge "ask[s] only that the reviewing court declare the challenged statute or regulation unconstitutional on the facts of the particular case." Sanjour v. E.P.A., 56 F.3d 85, 92 n.10 (D.C. Cir. 1995).

Dowdell argues that the Ordinance is unconstitutional as applied to him under the ex post facto prohibition of Article I, section 24 of the Indiana Constitution. * * *

Dowdell was charged, convicted, served the sentence for his crime, and fulfilled and completed his registration requirement before the Ordinance was enacted. We hold that as applied to Dowdell, the Ordinance violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed.

The judgment of the trial court is reversed.

BARNES, J., concurs.
CRONE, J., dissents with opinion. [which begins, on p. 22] I respectfully dissent. I agree with the majority that the intent-effects test provides the appropriate analytical framework for addressing ex post facto claims under the Indiana Constitution. See Wallace, slip op. at 10. However, when I weigh the seven factors listed in Mendoza-Martinez, I reach a different conclusion regarding whether the Ordinance at issue is unconstitutional as applied to Dowdell. * * *

To summarize, of the seven factors identified as relevant to the inquiry of whether this Ordinance has a punitive effect despite legislative intent that it be non-punitive, I find that one supports the conclusion that the Ordinance is punitive in effect as to Dowdell, and one slightly favors treating the effects of the Ordinance as punitive when applied here. The remaining five, including the excessiveness factor, point in the other direction. Accordingly, I would conclude that as applied to Dowdell, the Ordinance does not violate Indiana‘s constitutional prohibition on ex post facto laws. The predominantly non-punitive nature of the Ordinance convinces me that there is no violation of Article I, section 24 of the Indiana Constitution. Consequently, I would affirm the entry of summary judgment in favor of the City.

Matt Thacker of the Jeffersonville News & Tribune has posted a brief story this afternoon on the Dowdell decision. And the ILB has had a long list of entries on the Dowdell cases.

NFP civil opinions today (1):

Eric Abernathy and Karen Abernathy v. Erie Insurance Exchange (NFP) "Based upon the foregoing discussion and authorities, we conclude that the trial court properly applied set-offs to the Abernathys’ damages award for the payment from Davis and for medical benefits payments. With regard to the set-off for worker’s compensation benefits, we conclude that the trial court should allow a set-off only for the
amount the Abernathys did not repay to Eric’s employer. "

NFP criminal opinions today (4):

State of Indiana v. Heather Owens (NFP)

Lezlea E. Leeper v. State of Indiana (NFP)

Mia Taylor v. State of Indiana (NFP)

Theodus Mayes v. State of Indiana (NFP)

Posted by Marcia Oddi on June 9, 2009 01:12 PM
Posted to Ind. App.Ct. Decisions