Spencer v. O'CONNOR

proceeding, agree appraisal we do of IC 23- interpretation that the trial court’s

l-44-8(c) I, Nothing violates Art. 24. trial court was

its order reveals

interpreting the statute when it entered its Instead, merely relying

order. it was on the Fleming

admonition of II —that all of Flem-

ing’s relating claims to the sale of assets of Corp.

International be tried in the context of appraisal proceeding. The trial court did entering

err in of its order stat-

ing that all claims were to be tried in the

appraisal proceeding, and we remand with

instructions to the trial court to amend its

order to state that the and con-

tract-related claims are not to be tried in the appraisal proceeding.

context of the Howev-

er, relying because trial court was not 23-l-44-8(e) order, entering

IC its Fleming’s

decline invitation to hold that the I, §

statute violates Art. part,

Affirmed in part, reversed in

remanded.

RILEY, J., BROOK, J., concur. Bridwell, Ray

Shawn SPENCER and indi

vidually and on behalf of a class of those

similarly situated, Appellants-Plaintiffs, O’CONNOR,

Catherine in her official ca

pacity as the Executive Director of the Institute, Ap

Indiana Criminal Justice

pellee-Defendant.

No. 49A02-9805-CV-466. Appeals

Court of of Indiana.

March Falk, Civil Liberties

Kenneth J. Indiana Union, Appel- Indianapolis, Attorney For lants. Modisett,

Jeffrey Attorney A. General of Indiana, Geoffrey Slaughter, Special Counsel Lott, General, Attorney Cindy to the M. Division, Counsel, Special Chief Services In- Attorneys dianapolis, for Appellee. OPINION GARRARD, Judge Summary Case constitutionality This appeal concerns the Registration Indiana’s Sex Offender stat- (the “Act”). Ray ute Spencer Shawn (the “Appellants”) are both convict- Bridwell ed sex offenders who have been released residing confinement are now Spencer pled guilty Indiana. to child molest- ing in 1991. Bridwell convicted of three molesting counts Both of child in 1993. were imprisoned and both now have names (the listed in Sex Indiana’s Offender “Registry”).

The Appellants against filed a lawsuit O’Connor, capacity Catherine her official as the director Indiana’s Criminal Justice (the “Institute”). Institute alleg- The lawsuit Appellants’ Regis- es that the inclusion try prohibition post violates the on ex facto I, laws 10 of contained in Article Section I, States and Article United Constitution Constitution, Section 24 of Indiana since prior the Appellants committed their offenses 1, 1994, July effective date Act. challenge The Appellants Institute’s distributing method summary judg- filed motion for ment and the State filed a cross-motion for judgment. summary The trial court entered summary judgment favor State. Issues Reg- I. Indiana’s Sex Offender Whether istry prohibition statute violates the laws contained in the on Constitution and federal the Indiana to the extent Constitution al- persons the inclusion of lows who parole, to the prior probation their offenses whichever occurs committed last. 5-2-12-5(b). Act’s effective date. Ind.Code component the Act re- Justice II. Criminal Whether quires the Institute to maintain the distributing the practice of Institute’s mandatory it to recipi- and distribute certain any person requesting a Registry to § ents. 5-2-12-11. The Institute copy violates law. Ind.Code Registry the along Family maintains with the and Social Services to Administration ensure and Discussion Decision that it organizations provid- is distributed to stat- Registration Indiana’s Sex Offender children, ing required to services as under 1, July ute was enacted effective 1994. Ind. 5-2-6-3(a)(10).3 § statute. In Ind.Code 5-2-12-1, seq. many § et states’ Like Code specified receiving the addition to entities the laws,1 registration sex Indiana’s law offender Registry, the Institute will also distribute the registration provides for both and notification Registry entity or individual who re- to applies and to certain classes of sex offend- quests only exception The is that it. registra- § ers.2 Ind.Code 5-2-12-4. The Registry Institute will not release the to requires component tion those con- offenders currently prison. The State is offenders register victed after June 1994 to with required update Registry every to six local authorities in communities in § months. 5-2-12-10. The of- Ind.Code provide reside. The offender must local fender information is from collected various law enforcement officials with certain infor- sources, including the of Department Correc- name, any including offender’s tion, police, prosecuting attorneys, the State birth, sex, aliases, race, height, date of sheriffs, probation While the officers. number, color, weight, eye Security Social registration requires address, number, driver’s license home de- to submit more offender extensive informa- offense, scription of the the date of convic- tion, Registry only itself contains tion, imposed. and the sentence aliases, Ind.Code name offender’s § 5-2-12-6. A offender sex released Security number, Social the citation for the days custody register must within seven committed, conviction, offense date 5-2-12-5(a). § If his release. imposed. Registry and sentence The does Ind.Code moves, address, he must his new offender’s home contain community address to the authorities in the however, county city does or list where registered regis- where he last and he must Although to the offender intends live. community. ter with the requirement new registration imposed on offend- Ind.Code 5-2-12-5(a). 5-2-12-8(a), Knowingly §§ or to convicted after applies ers offenders intentionally failing register 30,1994, D is a Class June itself include felony. § regard- 5-2-12-9. An offend- convicted of sex persons all offenses Ind.Code duty register expires years er’s after date ten less of the of conviction. Ind.Code 5-2-6-3(b).4 placed § he prison has been released from or Currently, registration Specifically, 1. are sex 3. the Institute is send a there offender Myers, every registry corporations, copy laws in State v. state. 260 Kan. all school all (1996), schools, nonpublic agency P.2d cert. a state licenses — U.S. —, children, 117 S.Ct. 138 L.Ed.2d 1012 who work with the state individuals personnel department, screen individ- in order to children, may work all child care uals who with applies 2. The sex offender statute Indiana, other entities facilities licensed rape, those who have been convicted of criminal requesting reg- providing services children or conduct, exploita- molesting, deviate child child istry. § 5-2-12-11. tion, gratification, vicarious child solicita- Ind.Code sexual tion, seduction, child sexual conduct with mi- provides 4. Code that: The Indiana incest, felony, nor as a Class A or Class B 2—6—3(b)(l). (b) battery. sexual It subsection under established 5— Ind.Code (a)(10) applies kidnapping persons to those convicted must of all include the names criminal was under confinement if the victim who: (18) (1) eighteen 3(b)(2). years age. § 5-2-6- before or have been convicted in Indiana Ind.Code 30, 1998, after June of: However, 131 L.Ed.2d at we Post Facto Prohibition note I. Ex Hendricks, 521 U.S. in Kansas v. their in Appellants argue that (1997), L.Ed.2d post the ex violates clusion in under same test Supreme Court used the the federal included in both prohibition facto Clauses, Facto Jeopardy Double Ex Post United Constitutions. The and Indiana pun- test for that the leading us to conclude provides state “[n]o Constitution States clauses. Re- both is the same for ishment Law.” pass any post ... ... ex shall Hurst, N.E.2d 402 cently, in State v. Const, I, § Con The Indiana art. pun- (Ind.1997), discussed supreme court facto law provides post ex “[n]o stitution Jeopar- Double ishment in the context of Const, I, passed.” art. ... ever be shall Ind. dy Clause. acknowledge, and parties § 24. Both Hurst, driving the defendant Hurst analysis under agree, that facto road, yield county an a failed his car on under the federal Indiana law is same as intersection, caused a oncoming car at State, 669 See v. Constitution. Crawford Hurst, at deadly N.E.2d collision. 688 141, (Ind.1996); also State ex N.E.2d 150 see yield failing to Hurst was fined $61.50 Coun rel. Dorton v. Circuit Elkhart Court of infraction, paid a right-of-way, Class C (1980). 373, ty, 274 Ind. 412 72 N.E.2d Later, charged fine. Hurst Id. the State prohibits Ex Clause Post Facto homicide, felony. with reckless a Class C imposes enacting any states from law “which arguing a Hurst filed motion to dismiss pun for an punishment act which was Jeopardy the State violated Double committed; at the time ishable it was by prosecuting Clause him for reckless homi- punishment imposes additional then already cide when he had been fined for Graham, 450 U.S. prescribed.” Weaver v. yield right-of-way, failure to and the trial 24, 28, 960, 964, 17, S.Ct. 67 L.Ed.2d 21 101 granted Id. The court Hurst’s motion. State (1981). post of the ex “[T]he focus appealed supreme and our court reversed the facto legislative change inquiry is not on whether a trial court’s decision. Id. ‘disadvantage,’ ... produces some sort of but In reversing, the court addressed change such alters the defini on whether of a imposition the issue whether the fine pen tion of criminal conduct or increases “punishment,” implicating thus Dou alty by punishable.” Cali which crime is Jeopardy prohibition on the ble Clause’s sub Morales, Dep’t. Corrections fornia prosecution. sequent Adopting “intents- 499, 3, 1597, 3, n. 1602 n. 115 S.Ct. Supreme effects” test articulated in the (1995). 131 L.Ed.2d 593 n. 3 opinion Court’s Hendricks and in United case, does, fact, apply present Ursery, States v. 518 U.S. 116 S.Ct. thus, retroactively to the Appellants; (1996), supreme 135 L.Ed.2d 549 specific be issue to addressed is whether the determining whether court stated provisions inflict process. two-step sanction is is a “punishment,” in event the Ex Post First, legis we must determine whether applica Facto prohibit Clause would the proceedings lature intended to be civil or tion. determination, In making criminal. we may purpose examine the of the declared A. Punishment Under the Definition legislature as well as the structure de Ex Post Facto Clause Ursery, at sign of statute. 518 U.S. previously Our courts have not established If 116 S.Ct. L.Ed.2d a clear test civil, determine what constitutes ask intent was must next whether punishment under “statutory the Ex Post Facto Clause. punitive either [is] scheme so Supreme Nor has negate Court articulated or effect purpose [the as to State’s] Hurst, for identifying formula legislation that to deem it civil.” falls intention constitutional part within at 404. The second of the test prohibition. N.E.2d Morales, party challenging See U.S. at statute to requires 115 S.Ct. at 5-2-6-3(b). §

[enumerated Ind.Code crimes]. only notify proof’ punitive “the need law enforcement provide clearest officials Thus, any change days. purpose or effect of the statute. of address within seven Further, § determining a sanction is civil or 5-2-12-8. the infor whether Ind.Code criminal, solely look to the label we cannot not bur legislature, to it but must also densome. An offender given need information, personal in effect as punitive including examine whether it is so limited his or name, birth, longer properly physical description, to no be called a civil sanc- her date of number, Security tion. Id. Social driver’s license num ber, § and address. 5-2-12-6. Ind.Code Legislative Lastly, duty B. Intent register termi years nates ten after he is released from test, Applying this we first to the Act look prison, placed parole, placed proba on legislature’s to see if we discern the tion, whichever occurs last. 5-2- Ind.Code intent. The are correct in their provisions 12-13. These evidence an intent contention that is difficult to determine offender, to monitor the whereabouts of the legislative intent since there is no available punish not to the offender. See Russell v. history legislative and the Act does not con Cir.1997), (9th Gregoire, 124 F.3d 1088-89 However, purpose tain a statement. there — U.S. —, rt. ce ways legislative are other to discern intent. 1191, 140L.Ed.2d 321 placed We note that the Act is in Title 5 of Code, governs the Indiana which state and Purpose C. and Effect administration, 35, local rather in Title than part requires The second of the test which contains the criminal code. In deter Appellants provide proof’ “the clearest civil, mining whether an act was criminal or punitive that inclusion in the is so in the Hendricks Court stated that the fact that nonpunitive leg- effect that it overcomes the legislature placed probate the act in the islative intent and constitutes un- code, code, rather than the criminal evi Hurst, der the Ex Post Facto Clause. 688 objective proceed its to create a civil denced 404, Appellants at N.E.2d 405. do not Hendricks, 356, 117 ing. 521 U.S. at S.Ct. at challenge registration portion of the Act 2082, Similarly, in 138 L.Ed.2d at 511. Rather, point.5 on this assert that the Hurst, determining monetary in that a fine assessed, notification or is distribution exces- portion against committing a motorist for a punishment. sive and reaches the level of traffic violation was a civil sanction not punishment, supreme our court observed Excessiveness of Notification underlying traffic offense was an First, Appellants assert that notifica Code, infraction under Title 9 of the Indiana punitive is tion under because disclo code, the traffic and not a crime under Title overly sure- is broad and contains no limita 35, Hurst, the criminal code. at 688 N.E.2d tions on who receive the information. Therefore, placement we find that the support argument, In of their of the Act outside of our criminal code indi 669, rely Myers, on State v. 260 Kan. 923 person’s cates that a inclusion in the (1996), denied, — U.S. —, 1024 cert. P.2d is not intended to be a criminal sanction. (1997) 2508, 117 S.Ct. 138 L.Ed.2d 1012 General, 217,

Additionally, Attorney 425 680 design overall of the Act’s Doe v. Mass. (1997).6 cases, provisions signifies regulatory a In those the court intent. N.E.2d 97 Registration portion apprises law the notification enforcement offi- struck down question in registration cials of basic information about an statute offender sex offender living public in the areal It does not unrestricted finding restrain the movement; rather, nature, violating the Ex Post thus punitive Act, rely Gregoire, 5. Under the those convicted on Doe v. appellants of their offenses 6. The however, prior (W.D.Wash.1997), to June 1994 are not to com- this F.Supp. 1478 ply fore, requirements. with the There- Gregoire, Russell v. overruled decision challenge appellants (9th notifica- 1997). Cir. n. 11 124 F.3d tion of the Act. Moreover, Appel- disagree with this reason the cases Facto Clause. We Supreme rely before the of information lants were written ing. public dissemination Hendricks, In always priority in Court’s Hendricks decision. regarding crime has been analyzed Kansas’ Sexual- Indeed, Supreme Court society. in order to allow mem ly Act. This act established themselves, Violent Predator public protect bers of per- procedures for the civil commitment traditionally government published has warn likely engage “predatory sons who are posters, and arrest records. ings, wanted proof of based on acts of sexual violence” find the words Third Circuit We abnormality” “personality disor- (3d. “mental Verniero, 119 F.3d E.B. — Hendricks, 521 U.S. at der.” Cir.1997), —, cert. The Court 138 L.Ed.2d (1998), persua 140 L.Ed.2d 105 S.Ct. did not con- ruled that the civil commitment sive: did not vio- punishment and therefore stitute probable there has been cause When Jeopardy late the Ex Post Facto and Double that someone has committed believe determining that After first Clauses. crime, always our law has insisted on in en- legislature nonpunitive purpose had trial, indictment, public public public statute, Court stated acting the sentence, all of which neces- imposition an affirmative although imposed the statute sarily public entail dissemination of infor- traditionally regard- restraint and a sanction alleged about the activities of punishment, these factors did over- ed as public upon insist [W]e accused.... 117 S.Ct. at nonpunitive its ride nature. It for a number of reasons: dissemination reasoning, L.Ed.2d at 508. In so judicial public respect for the “heightens prove that a civil “[t]o the Court noted that public to ... “permits process,” heavy proceeding imposes punishment ‘is judicial pro- upon as a check serve burden.’” Id. cess,” “plays important role in and it Hendricks, light we cannot conclude governmental ... free discussion of provision rises to that Indiana’s notification Wholly independent of the crim- affairs.” regulatory It punishment. the level of is a entail, may that inal sanctions conviction re imposes that no affirmative measure consequences requiring our law disability More straint or on offender. information public dissemination of over, inter given it is not excessive the state Nevertheless, our can be severe.... note since the est at stake. We also regard- information laws’ insistence decision, have re several courts Hendricks proceedings publicly be dis- ing criminal jected arguments similar to is not intended as seminated presented by Appellants here. See those regarded has never been as such. Probation, 125 F.3d 47 Roe v. Adult Office of (citations Verniero, at 1100 omit 119 F.3d (2d 1079; Cir.1997); Gregoire, 124 F.3d Pa ted). Verniero, taki, 1263; 119 F.3d 1077. 120 F.3d out, argue that significant por Appellants since points the State a As pro does not Reg in the Indiana’s distribution scheme tion of the information contained fact, already public notice levels based on istry public domain. In vide for limited bisk, many state stat published in as other the information found court records, do, does not Registry’s distribution opinions and in court be utes scrutiny. Many by states do public, pass is often more exten constitutional accessed of offender infor descriptive varying than that levels sive and contained in for on the level of risk Registry. compile Indiana’s decision to distribution based example, in New Jer place it in For this information one source of the offender. county where punitive consequence sey, prosecutor “does not add assesses the to reside regulatory measure.” intends otherwise Doe v. Pa sex offender (2d. taki, Cir.1997), registered each individ for 120F.3d cert. risk of reoffense — low, —, may pose a S.Ct. moder offender 140 ual. The Verniero, risk. ate, high reoffense L.Ed.2d 126 or penalties If the assessed at to include criminal offender is additional F.3d at risk,” only warnings potential to law regarding unlawful acts “low extends committed in connection with ob- officials. If the offender is as- information enforcement risk,” in enforce- tained “moderate then law sessed officials, schools, community orga-

ment Public Retaliation are offender is nizations alerted. Id. If the next argue Regis- risk,” “community “high there is notifica- therefore, try and, public leads to retaliation tion,” likely where public members of the punitive Specifically, has a effect. the Appel- registrant encounter the are notified. they lants claim that have been victims contrast, attacks, Registry intimidation, Indiana’s does public verbal and vio- categories. divide offenders into risk In- lence of their as a result status as sex offend- stead, Registry commit- Spencer lists the offense ers. states that he has been con- imposed publicly verbally the sentence several ted and for each named fronted times and offender, categorizing without offenders. attacked about his molestation conviction. result, Appellant’s at 8. Bridwell he provides As a the Act a more Br. asserts that letters, threatening has received has had limited notification scheme than does New sign hung property his reading “child Jersey’s. example, For Indiana’s molester,” had address, has shots fired at him awith does not include the offender’s home gun, BB has had his automobile and place employment, photograph, vehicle information, home vandalized on several occasions. Brid- Jersey’s. as does New Addi- well place was also forced leave his tionally, only Regis- distributes being after co- attacked try any range narrow one entities — worker who called him a “child molester.” wanting to in else receive the information However, Appellant’s Br. the appel- affirmatively must it. On the seek hand, statute, lants admit that cannot establish with Jersey’s “high other New proof publication clear cases, of their names provides community risk” for actual the sex caused notification, these inci- community where members of a review, Appellant’s dents. Br. at 9. In our high are notified that a risk has sex offender directly we must focus on the effects into community. moved Id. At attributable notification. Without clear rate, we compare decline the invitation to proof publication, of retaliation based on Indiana’s model that of oth- with only possible illegal are consider asked to determining er states whether violates responses community, which is not frequently Post Ex Facto Clause. States earlier, prerogative. in our As discussed aas differing policy pass make and laws decisions court, presume that our we must law enforce- accordingly. It is not to our role consider protect any ment will officials offenders from legislative judgment weigh policy or to deci- vigilantism. acts of ease; rather, sions we need registra- determine whether our sex offender acknowledge that the ef We indirect tion statute withstands constitutional scruti- fects of notification the and offenders ny. may Indeed, be harsh. families similar Lastly, Appellants argue the the Act that “vigilante that eases document incidents of justice” is unconstitutional since it not uncommon does are not and occur with Verniero, penalties or warnings frequency. for those who misuse 119 See F.3d at 1077. unlawfully against may the and retaliate These incidents include lost discrimination, the disagree. presume opportunities, housing offenders. We We threats, Id.; Pataki, that citizens of the of our state are aware and violence. 120 F.3d However, public criminal laws and legally are for of responsible dissemination regarding unlawful action activity information criminal against take others. has presume We also the of always negative that our carried risk law conse enforcement Yet, will investigate officials dissemination of quences. such prosecute and indi- informa itself, tion, who has viduals choose of never regarded to in and been take such action. Thus, it was not when done necessary in the punishment legislature for our as furtherance

1046 of Institute is to purposes “[e]stablish at legitimate governmental interest. of a maintain, potential reviewing cooperation and the real and with office 1100. After of- by appellants secretary family services, and other risks faced of social fenders, say statute vio- we cannot registry.” a sex and violent offender Ind. a sanction 5-2-6-3(a)(10). lates the Constitution. “Whether statu- Having been Code is not determined constitutes responsibility of es- torily charged with the perspective, even as from defendant’s tablishing maintaining Registry, we carry ‘sting punish- remedial sanctions “great weight” to the Institute’s deci- attach ” Revenue Kurth Department ment.’ the registry sion to make available to those Ranch, n. 511 U.S. 777 requesting it and those who wish access n. 14 128 L.Ed.2d n. Natu- information on the Internet. See egregious effect is not so The Act’s County, ral Resources Comm’n v. Porter regulatory that it or as to convince us is not (Ind.1991). Therefore, N.E.2d we remedial. that the actions are not conclude Institute’s Act, are in- precluded under reasonable

Finally, although note it, upheld. may terpretations of and should be conveys public to the information offender, it against the sex lead retaliation Affirmed. act con- prior criminal is The in- viction that motivates the behavior. BAKER, J. concurs. by Appellants are de- cidents described ROBB, opin- separate files J. concurs and by pendent parties on acts third ion. pri- available have resulted from information Further, publication or to ROBB, J., concurring separate opin- with consequences imposed are not incidents ion. itself, by the fact of the but flow from Pataki, underlying act. criminal F.3d majority opinion, I concur in but write 1280. Whatever burdens arise notifica- separately specific address a tion, they sufficiently not severe as to are therein. statute not discussed Indiana Code punishment. constitute language section 5-2-12-12 describes copy foregoing, that must be included on a Based on the we conclude entity by prohibition the Act violate on ex sent to an section 5-2-12- does not the federal Con- laws contained in 11: stitution the Indiana Constitution. appears reg- person A whose name on this Statutory istry II. Claim been of a offense or has convicted sex against violent offense a child has target Appel of the attack of adjudicated delinquent been child an presented lant’s the Act second issue involving child would be act another itself, but the internal distribution sex or violent offense if committed policy of Code Section the Institute. Continuing employ person adult. provides 5-2-12-11 that “the institute shall appears registry may whose name on this (1) copy paper one of the sex offender send liability civil for employer. result registry to” certain enumerated entities. However, the Institute will also distribute respondeat our law Given state of it, Registry any person requests who liability, superior especially inter- the limited prisoners, exception with the of and makes given have pretation “scope our courts of Registry on the Internet. available requirement, it employment” is doubtful that subject employer would ever an court claim this distribution liability injuries for arising out of the of the civil practice language violates the Act. We person of a whose appears name disagree. plain language employment Act does If inclusion of this lan- preclude distributing not the Institute from on the rather, legislative attempt public; guage to the identifies Moreover, foreseeability of misconduct registry. might “shall” receive the oth- who 5-2-6-3, lacking, Indiana Code found courts are under Section one of be almost erwise our current law that under certain to find INDIANAPOLIS, of The CITY et acting scope within the OF

employee was not al., Appellants-Defendants, em- This is so because no employment. his for ployer going employee to hire is ever v. committing of sex express purpose Nancy TAYLOR, Individually Hobbs Moore, Wayne City Fort offense. See of as Administratrix of the Estate of Mi- 1999) (Robb, J., (Ind.Ct.App., 706 N.E.2d 604 Jr., Taylor, Appellee-Plaintiff. H. chael City (majority held that dissenting) No. 30A04-9612-CV-521. police not for a attack on responsible officer’s during stop an ostensible traffic motorist Court Appeals of Indiana. off-duty, the officer was out-of-uni- because March form unmarked car at the time of and in an stop). wonder, then, I was the am left to what requiring

legislature’s purpose in copy on each

language be included entity and what

Registry sent to a superior liability respondeat

does it mean opinion am of the that the future? I

“scope requirement has been employment” narrowly responde- as to render

construed so liability virtually nonexistent. I superior legislature’s that a

believe that mandate liability may if a

warning that civil result offender commits misconduct

known sex

proximate to his be included my expan- Registry

with the bolsters more employment” “scope

sive approach liability.

respondeat superior

Nevertheless, majority agree I with the does not violate the ex prohibitions of the state and federal constitutions, practice and that the Institute’s just available making the is within the required entities dictates major- I therefore concur statute.

ity opinion.

Case Details

Case Name: Spencer v. O'CONNOR

Court Name: Indiana Court of Appeals

Date Published: Mar 30, 1999

Citation: 707 N.E.2d 1039

Docket Number: 49A02-9805-CV-466

Court Abbreviation: Ind. Ct. App.