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Tuesday, January 26, 2010

Ind. Decisions - Continuing with: Supreme Court's ruling in Wallace v. State has thrown the state and local sex offender registries into disarray

In this long ILB entry from Jan. 9, 2010, I linked to the complaint filed by the the Indiana ACLU in Does I-III v. Indiana Department of Correction, et al., where, in light of our Supreme Court's decision in Wallace v. State, the complaint asked the court to:

a. Certify this case as a class action with the class as defined above.

b. Declare that subjecting persons to the requirements of Indiana's Sex Offender Registration Act that entails both registration and listing on the sex and violent offender registry where the persons committed their sex offenses prior to the time the Registration Act applied to their offenses, is unconstitutional as violating the ex post Jacto provision of the Indiana Constitution, Art. 1, § 24.

c. Enjoin defendants from imposing any of the requirements of Indiana's Sex Offender Registration Act, including both registration and listing on the sex and violent offender registry.

d. Award plaintiffs all other proper relief.

Class certification has been granted.

Here is a long list of earlier ILB entries on the Wallace opinion and its impact.

Today the ILB has obtained access to another complaint seeking a judicial declaration of the impact of Wallace on others. The case, John R. Farmer v. IDOC, was filed Nov. 10, 2009.

Some quotes:

Plaintiff, John R. Farmer ("hereafter "Farmer"), by counsel, Kathleen M. Sweeney, respectfully moves for Declaratory Judgment pursuant to Ind. Code § 34-14-1-1 and Article I, § 24, Indiana Constitution against Defendants, State of Indiana and Hendricks Couny Sheriff Dave Galloway for improperly and unlawfully requiring him to register as a sex offender and to list him as a sex offender. * * *

23. Subjecting Farmer to the requirements of Indiana's Sex Offender Registration Act that entails both registration and listing on the Registry when his offense was committed prior to the time the Registration Act was enacted Is a violation of the Article I, § 24, Indiana Constitution which precludes imposition of
ex post facto punishment. * * *

Request for Relief:

a. Declare that subjecting Former to the requirements of Indiana's Sex Offender registration Act that entailS both registration and listing on the sex offender registry when he committed his offenses prior
to the time the Registration Act applied to his offenses is unconstitutional as violating the ex post focto provision of the Indiana Constitution, Article I, § 24;

b. Enjoin defendants from Imposing on Farmer any of the requirements of Indiana's Sex offender registration Act , including both registration and listing on the sex offender registry;

c. Direct defendants to remove Farmer from the sex offender registry;

d. Award attorney's fees and costs; and

e. Award Farmer all other proper relief.

The most interesting part is the response of the Attorney General. As I've reported in past entries, the AG's office has made no official statement on the impact of Wallace, or what the DOC or sheriffs should to comply. This Nov. 18, 2009 ILB entry quoted the AG's office as stating:
To clarify, the Attorney General’s Office has not issued a communication to county sheriffs on this subject. The Wallace decision still is under consideration and review. We have discussed enforcement options with our client, the Department of Correction. But we have not issued a published legal advisory opinion on this subject.
But in a motion filed Jan. 14, 2010 in the Farmer case, the DOC, through its counsel the AG, submits a motion to dismiss in response to John Farmer's compliant for declaratory judgment, on the grounds that "A suit pursuant to this act is inappropriate because the plaintiff has full and adequate remedy provided by another cause of action." Here, from p. 4 of the AG's supporting memorandum:
IC 11-8-8-22 states that a person who is required to register under the Act may petition a court to remove his status as a sex offender if due to a change in federal or state law after June 30, 2007, an individual who engaged in the same conduct as the offender would not he required to register under the Act. This is precisely the relief the plaintiff seeks.

The plaintiff by his own admission is a sex offender and was at one time legally obligated to register as a sex offender. Prior to Wallace, all sex offenders, regardless of the date of the commission or conviction, were required to register pursuant to the Act. However, the Wallace Court held that the Act violated ex post facto prohibitions as applied to a sex offender who committed his crime prior to the Act's 1994 enactment. Wallace, 905 N.E.2d at 373. Thus, Indiana law changed with that decision in 2009.

The plaintiff is seeking for this Court to declare that he is not subject to any provisions of the Act. This is the exact remedy already available to him through section 22 of the Act. This makes a declaratory judgment action inappropriate. Indiana law is clear that a declaratory judgment action should not be resorted to if an adequate remedy is already provided by another cause of action. Section 22 of the Act provides a mechanism for the remedy the plaintiff seeks, and it is through this mechanism, not through a declaratory judgment, the plaintiff should seek relief. Indeed, this was the route that provided the successful means for the petitioner in Wallace's companion case, Jensen v. State, 905 N.E.2d 384 (Ind. 2009).

[ILB emphasis]

[ILB reaction: Interesting: "Thus, Indiana law changed with that decision in 2009." Or, to put it another way, the Indiana Supreme Court does not interpret and apply the law, it changes the law.]

To wrap this up, the ILB has also obtained a deposition in the ACLU class action declaratory judgment action mentioned earlier. Here are some quotes from the testimony of a DOC employee, testifying about what the DOC is doing to implement the Wallace decision:

Q. Now you are obviously aware of the case of Wallace versus State; is that correct?
A. Yes.
Q. And what are you aware of about that case?
A. It deals with registration and registry issues. Came down on April 30th. 2009. I guess specifically?
Q. Uh-huh.
A. That it deals with registration efforts and Richard Wallace specifically and the case referenced as applied to Richard Wallace.
Q. I'm showing you what's been marked as Exhibit 3 and this is something that's posted on the DOC's sex and violent offender registry on lhe website; is that correct?
A. Yes.
Q. And it is my understanding that the reference where it says Indiana Supreme Court cases is what the DOC's response is to the Wallace case with regard to registrants other than Mr. Wallace; is that correct?
A. Yes.
Q. So the DOC is not going through the registry and trying to remove names of persons who may he in the same position that Mr. Wallace was in; is that correct?
A. That is correct.
Q. Absent a court order?
MR. ARTHUR: Can I have that question again'?
(The Court Reporter read back the last preceding question. as set forth herein above.)
MR. ARTHUR: Does your question assume that they haven't asked to be taken off the registry'? r mean obviously if somebody says take me off the registry, they're going to look at it. Do you mean kind of -- are you talking about a Responsa for lack of a better description?
MR. FALK: Yeah. Let's rephrase it.
Q. At this point the DOC is not doing anything without being approached by a sex offender to take their names off the registry in response to Wallace; is that correct?
A. That is correct.
Q. And if a sex offender just happens to call you or contact you or write to you and say. hey, I don't think I should be on the registry anymore because of Wallace, are you removing those people?
A. We are not.
Q. And reviewing what Exhibit 3 says you are waiting until ordered by a court to do that; is that correct?
A. That is correct.
Q. And so the only thing a person can do at this point who thinks they should not be on the registry is to file something in court to require the DOC to remove their name; is that correct'?
A. That is correct.
Q. And do you know what they have to file in court or where they file? Do you know how that is handled?
A. I do not.
Q. In our prior deposition in another case you indicated at this point there is no procedure regarding allowing registrants to appeal or challenge factual errors on their registry history; is that correct?
A. Yes.
Q. And that is still correct?
A. Yes.
Q. And registrants are not informed at this point if they disagree with their listing they can contact you and have you correct that?
A. That is correct.
Q. And I think we established as far as the Wallace case is concemed, they have to go in front of the court and file a lawsuit or do something to get a court order to force their name to be taken off the registry; is that correct?
A. Yes.
MR. FALK: I have nothing further.
MR. ARTHUR: No questions.
___________________

Complaint for Declaratory Judgment

Motion to Dismiss

Supporting Memorandum

ACLU deposition

[More] See also Greer v. Buss (COA, Dec. 17, 2009) (neither rehearing nor transfer sought),

Posted by Marcia Oddi on January 26, 2010 02:54 PM
Posted to Ind. Sup.Ct. Decisions