State of Indiana v. Scott Zerbe
50 N.E.3d 368
| Ind. | 2016Background
- In 1992 Scott Zerbe was convicted in Michigan of criminal sexual conduct with a minor; upon release in 1999 Michigan required him to register for 25 years.
- Indiana and Michigan enacted sex-offender registration statutes in 1994; in 2006 Indiana amended its definitional provision to include anyone “required to register as a sex offender in any jurisdiction.”
- Zerbe moved to Indiana in 2012 and, because Michigan still required his registration, Indiana’s statute required him to register here as well.
- Zerbe petitioned to remove his Indiana designation, arguing as-applied ex post facto violation because his offense predated any registration law when committed.
- The trial court granted relief; the Court of Appeals reversed in a divided opinion; the Indiana Supreme Court granted transfer to decide whether applying Indiana’s 2006 amendment to Zerbe violates the Indiana Constitution’s ex post facto prohibition.
- The Supreme Court held that because Zerbe was already under a Michigan registration obligation, Indiana’s 2006 amendment did not impose additional punitive burdens and thus did not violate the Ex Post Facto Clause as applied to him. The Court reversed the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applying Indiana’s 2006 definitional amendment to require Zerbe to register here is an unconstitutional ex post facto punishment as applied | Zerbe: enforcement punishes retroactively because his offense predated any registration laws | State: Zerbe already had a Michigan registration duty; Indiana’s amendment merely maintains/extends that regulatory duty across state lines and is nonpunitive | Held: No ex post facto violation as applied; Indiana may require registration because Zerbe was already required to register in Michigan |
| Whether the relevant inquiry is date of underlying offense or the fact of an existing out-of-state registration requirement | Zerbe: focus on offense date (like Wallace) to find retroactive punishment | State: focus on current trigger—an existing out-of-state registration—rather than the offense date | Held: Court focuses on the triggering fact (Michigan registration); Wallace is distinguishable |
| Whether Indiana should re-evaluate another state’s constitutional analysis of its registry law | Zerbe: Indiana should decide registration requirements independently | State: Indiana defers to other jurisdictions’ sex-offender designations when statute commands | Held: Court will not substitute its constitutional analysis for another state’s when that state has validly imposed a registration duty |
| Whether the amended definition imposes additional burdens (intent-effects test) making it punitive | Zerbe: argues stigma and notification impose punitive effects | State: burdens are regulatory and largely duplicative of Michigan’s existing duties | Held: Under intent-effects analysis, the amendment is nonpunitive as applied and does not add punishment beyond Michigan’s requirements |
Key Cases Cited
- Smith v. Doe, 538 U.S. 84 (registration deemed civil regulatory scheme under federal Ex Post Facto Clause)
- Wallace v. State, 905 N.E.2d 371 (Ind. 2009) (as-applied ex post facto holding where registrant’s crime predated Indiana’s registration law)
- Burton v. State, 977 N.E.2d 1004 (Ind. Ct. App. 2012) (court of appeals decision finding ex post facto violation under similar facts)
- Meredith v. Pence, 984 N.E.2d 1213 (Ind. 2013) (standard for as-applied constitutional challenges)
- Zoeller v. Sweeney, 19 N.E.3d 749 (Ind. 2014) (deference to legislature when resolving doubts in registration statute challenges)
- People v. Pennington, 610 N.W.2d 608 (Mich. Ct. App. 2000) (Michigan court upholding retroactive application of Michigan SORA as nonpunitive)