State v Pollard

6-30-2009 Indiana:

State v Pollard
908 N.E.2d 1145 (2009)

The question presented is whether a section of the Indiana Sex Offender Registration Act that we refer to as the "residency restriction statute" constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution. In this case the answer is yes.

Facts and Procedural History
On April 4, 1997, Anthony W. Pollard was convicted of a sex-related offense for which he was apparently sentenced.1 On July 1, 2006, the residency restriction statute — Ind. Code § 35-42-4-11 — came into effect. That statute provides that a person convicted of certain sex-related crimes is classified as an "offender against children" and commits "sex offender residency offense," a Class D felony, if the person knowingly or intentionally resides within 1,000 feet of school property, a youth program center, or a public park.2 On January 23, 2007, the State charged Pollard with violation of the residency restriction statute, and Pollard responded with a motion to dismiss contending the statute violated the ex post facto prohibition contained in Article I, section 24 of the Indiana Constitution. The parties presented the matter to the trial court based on stipulated facts as follows:

1. That the defendant, Anthony W. Pollard, has an ownership interest in the real estate located at 817 North Monroe Street, Hartford City, Indiana. Further, Anthony W. Pollard has had his ownership interest in the real estate for approximately the past 20 years.

2. That the defendant, Anthony W. Pollard had an ownership interest in the real estate located at 817 North Monroe Street, Hartford City, Indiana on January 12, 2007, the date the State of Indiana has alleged that the defendant committed a criminal offense under I.C. 35-42-4-11 under the above captioned cause.

3. That the residence owned and occupied by Anthony W. Pollard located at 817 North Monroe Street, Hartford City, Indiana is within one thousand (1,000) feet of school property, a youth program center or a public park.

4. That the defendant, Anthony W. Pollard was residing at the residence located at 817 North Monroe Street, Hartford City, Indiana on January 12, 2007, the date the State of Indiana has alleged that the defendant committed a criminal offense under I.C. 35-42-4-11 under the above captioned cause. The defendant resided at the residence located at 817 North Monroe Street, Hartford City, Indiana more than two (2) nights in a thirty (30) day period prior to January 12, 2007.

5. That the defendant, Anthony W. Pollard has a prior conviction for an offense listed under I.C. 35-42-4-11(a)(2).

6. That the defendant, Anthony W. Pollard's conviction under I.C. 35-42-4-11(a)(2) occurred prior to the effective date of Indiana Code 35-42-4-11 which was on July 1, 2006.

7. That the defendant, Anthony W. Pollard has been a resident and owner of the residence located at 817 North Monroe Street, Hartford City, Indiana for at least one year prior to the effective date of I.C. 35-42-4-11.

Appellant's App. at 9-10. After entertaining arguments of counsel, submitted by way of written memoranda, the trial court granted Pollard's motion to dismiss concluding that as applied to Pollard the residency restriction statute violates the ex post facto prohibition of Article I, section 24 of the Indiana Constitution. Appellant's App. at 19. On review, focusing primarily on the punitive impact of the statute on Pollard's property interest, the Court of Appeals agreed and affirmed the trial court's order of dismissal. State v. Pollard,886 N.E.2d 69 (Ind.Ct.App.2008). Although we agree the trial court's order of dismissal should be affirmed our analysis is different from that of our colleagues. We therefore grant transfer and affirm the judgment of the trial court.3

....

Conclusion
Anthony Pollard was charged with, convicted of, and apparently served the sentence for a crime qualifying him as an offender against children before the residency restriction statute was enacted. We conclude that as applied to Pollard, the statute 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 trial court thus properly dismissed the information charging Pollard with a violation of the statute. See State v. Davis,898 N.E.2d 281, 285 (Ind.2008) (declaring "courts have the inherent authority to dismiss criminal charges where the prosecution of such charges would violate a defendant's constitutional rights"). We affirm the trial court's judgment.

---

Ind. Supreme court finds residency law not retroactive

INDIANAPOLIS (AP) - The Indiana Supreme Court says convicted sex offenders need not relocate if they resided near places frequented by children before a 2006 state law that restricts where they live.

The court ruled this week that the law violates the Indiana constitution by retroactively punishing ____ of Blackford County.

He had owned his home for about 10 years when he was convicted of a sex offense against a child in 1997. ____ then was charged in 2007 with violating the law that prohibits convicted sex offenders from living within 1,000 feet of a school, park or youth program center.

A Blackford County judge dismissed the charge as unconstitutional, and the state appealed. But the Indiana Court of Appeals and now the state Supreme Court both upheld the local ruling. ..Source.. by Fox28.com

Doe v Keathley

6-16-2009 Missouri:

Doe v Keathley
290 S.W.3d 719 (2009)

Note 1-27-2013: There is a good possibility this case was wrongly decided, however until someone challenges it, it will stand a precedent for Missouri sex offenders. AWA has a provision which effectively says: If the state has a Supreme court decision allowing certain registrants to NOT REGISTER because of a conflict with the state's constitution, then they do not have to under AWA. 42 USC 16925(b). It seems Keathley missed that AWA provision:

Doe v. Keathley, 2009 - Missouri Supreme Court held that the federal SORNA imposes an independent obligation on sex offenders living in Missouri to register, even if they would not been required to register under state law. As a result of the Missouri Supreme Court’s opinion in Keathley, all sex offenders living in Missouri must register. For those individuals convicted of sex offenses prior to 1995, the retrospective law argument has been rendered moot.

From Doe v Keathley:

In this case, respondents are subject to the independent, federally mandated registration requirements under the Sexual Offenders Registration and Notification Act (SORNA). SORNA provides, inter alia, that "[a] sex offender shall register... in each jurisdiction where the offender resides." 42 U.S.C. section 16913. A "sex offender" is "an individual who was convicted of a sex offense." 42 U.S.C. section 16911(1). A "sex offense" includes a "criminal offense that has an element involving a sexual act or sexual contact with another." 42 U.S.C. section 16911(6). SORNA applies to individuals who committed a sex offense prior to July 20, 2006. 42 U.S.C. section 16913(d); 28 C.F.R., section 72.3. Therefore, SORNA imposes an independent obligation requiring respondents to register as sex offenders in Missouri. The independent registration requirement under SORNA operates irrespective of any allegedly retrospective state law that has been enacted and may be subject to the article I, section 13 ban on the enactment of retrospective state laws. Consequently, the circuit court erred in concluding that respondents are exempt from registration by virtue of article I, section 13 of the Missouri Constitution. The judgment is reversed.

All concur.

---

Now see a 2011 decision Doe (A different Doe) v Keathley. Especially the conclusion:

... Indeed, the sentence of the Attorney General's statement immediately preceding the sentence on which Doe relies states categorically that "SORNA's requirements apply to all sex offenders, regardless of when they were convicted," 76 Fed.Reg. at 1639, recognizing the distinction between an offender's statutory obligation to register, on the one hand, and a State's efforts to ensure that offenders in fact comply, on the other. Second, Doe's petition only sought relief on the basis that he had not been "convicted" of a sex offense within the meaning of the statute. He did not allege that he should be exempted from SORNA's registration requirements because he had completed his involvement in Missouri's criminal justice system at the time the statute became effective. Doe is not entitled to relief on a ground he did not assert in the circuit court.

Make sure your petition alleges the correct issues, the outcome may control whether or not you must register under SORNA.

Sewell v State

This decision ends with absurd results. Effectively the court makes a specific address unconstitutional if certain persons live there. When an earlier court has exempted these certain persons from operation of the law. There is no public safety value in this decision, at best it is vindictive and stalks these persons in an effort to deny them their civil rights (see 42 sec 1983, 1985(3), 1982). ACLU where are you?

8-28-2012 Indiana:

Sewell v State
973 N.E.2d 96 (2012)

Anthony Mark Sewell ("Sewell") appeals his conviction of committing a sex offender residency offense1 as a Class D felony, contending that the evidence was insufficient to support his conviction and that the conviction violated the prohibition against ex post facto provisions in both the federal and state constitutions. We affirm.

FACTS AND PROCEDURAL HISTORY
Sewell was convicted of child molesting as a Class B felony in 2001. He was released from the Department of Correction in 2007 and placed on probation. Sewell, as an offender against children, was required to register his address with law enforcement. By July 2011, Sewell had registered seventeen times with the Shelby County Sheriff's Department ("SCSD"). Each time Sewell registered, the Shelby County Sex Offender Registry Clerk ("Registry worker") would check Sewell's address against a computerized map, which indicated the distance from that address to any known addresses of churches, schools, or other locations having youth program centers. Sewell was also given an information packet in which his registry obligations were discussed. The packet included the explanation that Sewell was not allowed to spend more than two nights within any thirty-day period in a residence that was within 1,000 feet of a youth program center. A Registry worker would orally explain the information to Sewell each time he registered. Sewell would then initial and sign the information packet in the presence of a Registry worker, who countersigned the form.

In June 2011, Sewell went to the SCSD registry and informed them that he intended to move to 42 West Brookville Road in Fountaintown. A Registry worker checked the address against the computerized map and informed Sewell that his proposed residential address was within 1,000 feet of a church. That church, the Community Church of Fountaintown, was within 1,000 feet of 42 West Brookville Road. The Registry worker explained to Sewell that he would violate the law if he lived within 1,000 feet of the church and if the church maintained a school, day-care, or youth program center. The Registry worker told Sewell that if he could obtain a statement from the church that it did not house those facilities or activities, he might be able to reside within 1,000 feet of the church's property. Sewell decided not to change his residential registration at that time.

On July 1, 2011, Sewell returned to the SCSD registry and attempted to register 42 West Brookville Road as his residential address. Sewell had a letter from Pastor Michael Smith of the church, which included the statement that the church did not have a day-care or school on the property. Because the letter made no mention of youth programs, the Registry worker called the church to inquire about the church's operations. In that telephone call, Pastor Smith verified that the church had a youth program for children younger than eighteen years of age on Sunday evenings from 5:00 p.m. until 7:00 p.m. Based upon that information, the Registry worker told Sewell that he could not live within 1,000 feet of the church without violating the law. Sewell disputed what the Registry worker said and produced a video-recording cell phone. The Registry worker repeated that Sewell could not live within 1,000 feet of the church without violating the law. Sewell then told the Registry worker that the rent at his present address was paid until July 3 or July 4, 2011 and that he would remain there until then.

On July 5, 2011, Sewell returned to the SCSD registry, this time with Pastor Smith. Sewell registered 42 Brookville Road as his new residential address. The Registry worker used a previous map printout to remind Sewell that the address was within 1,000 feet of a youth program center. Sewell explained that Pastor Smith came with him to clear everything up. The Registry worker replied, "Anthony it's not gonna matter if I speak with the minister or not, that address still violates the 1,000 feet" restriction. Tr. at 30. Pastor Smith went to speak to the Shelby County Sheriff. Pastor Smith recalled being confused about the reason why it was fine for Sewell, who had recently become a member of the church, to attend church services, but was prohibited from living within 1,000 feet of the church.

Pastor Smith returned to the registration desk after speaking with the sheriff. Sewell told the Registry worker that he would register the address as his temporary residence. The Registry worker informed Pastor Smith that registering the address as a temporary residence did not exempt the address from the 1,000 foot exclusion zone, and that Sewell's residence there would be a violation of the law. The Registry worker recalled telling Sewell that many other offenders who had tried the same or similar thing had been in violation of the 1,000 foot exclusion zone. Sewell registered the address as his residence nonetheless.

....

The prohibition against ex post facto laws applies only when a new law "`imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Id. at 1149 (quoting Weaver, 450 U.S. at 28, 101 S.Ct. 960). The fact that an element of a crime "`draws upon antecedent facts'" does not make Indiana Code section 35-42-4-11 an ex post facto law. United States v. Hemmings, 258 F.3d 587, 594 (7th Cir.2001) (quoting Cox v. Hart, 260 U.S. 427, 435, 43 S.Ct. 154, 67 L.Ed. 332 (1922)). "The critical question in evaluating an ex post facto claim `is whether the law changes the legal consequences of acts completed before its effective date.'" United States v. Brady, 26 F.3d 282, 291 (2nd Cir.1994) (quoting Weaver, 450 U.S. at 31, 101 S.Ct. 960).
[ 973 N.E.2d 103 ]

In the present case, Sewell did not reside or own property within 1,000 feet of the church when he was convicted of child molesting. Nor has he shown that he resided in property which only later fell within a protected zone due to the establishment of a school or youth program center. Here, the law punishes the decision by Sewell, an offender against children, to take up residence within 1,000 feet of an existing youth program center. We conclude that because Sewell's residency decision occurred after the enactment of the statute, Sewell's prosecution does not violate state or federal ex post facto provisions. Affirmed.

Gonzalez v State

1-10-2013 Indiana:

Gonzalez v State
No. 45S03-1206-CR-307.

After the defendant had fully served his sentence of imprisonment and probation for Child Solicitation, and during the ten-year period of his required registration as a sex offender, the statutory registration requirement was amended to require lifetime registration in certain circumstances. The defendant's offense fell within these circumstances. Upon completion of his ten-year registration requirement, the defendant unsuccessfully sought his removal from the Sex Offender Registry, claiming refuge under the Indiana Constitution's prohibition against ex post facto laws. We hold that, under the facts of this case and as applied to this defendant, the Ex Post Facto Clause of the Indiana Constitution prohibits retroactive application of the lifetime registration requirement.

In 1997, the defendant, Andre Gonzalez, pled guilty to Child Solicitation, a class D felony.1 Ind. Code § 35-42-4-6. The trial court imposed a three-year sentence, with eighteen months incarcerated and eighteen months on probation. Upon discharge from probation in 1999, the defendant was required to register as a sex offender for ten years pursuant to the Sex Offender Registration Act ("Act"). See Ind. Code § 5-2-12-5 (1996). In 2006, the legislature amended the Act to require certain sex offenders, based on the details of their crimes, to register with local law enforcement for life. See, e.g., Ind. Code § 11-8-8-19(c) (requiring lifetime registration if offender over age eighteen and victim under age twelve at time of crime). In 2010, after the defendant had completed ten years of registration, he wrote the trial court, requesting the removal of his registration requirement. On January 27, 2011, the defendant, by counsel, filed a "Verified Petition to Remove Sex Offender Designation Pursuant to Ind. Code 11-8-8-22." Appellant's App'x at 34. The trial court denied the petition, and the defendant appealed. The Court of Appeals reversed. Gonzalez v. State, 966 N.E.2d 648 (Ind. Ct. App. 2012). The State sought transfer, urging that the decision of the Court of Appeals is inconsistent with precedent. We granted transfer and thus consider the appeal and issues as originally presented to the Court of Appeals. Ind. Appellate Rule 58(A).

In his appeal the defendant contends that, as applied to him, the 2006 amendments to the Act, which belatedly extend his registration requirement from ten years to life, violate the prohibition against ex post facto laws contained in the Indiana Constitution. Ind. Const. art. 1, § 24. Important in the defendant's claim is that there is no opportunity for review of the defendant's future dangerousness or complete rehabilitation. The State asserts that the availability of a review process is irrelevant to the ex post facto determination.

The Indiana Constitution states "No ex post facto law . . . shall ever be passed." Id. This provision prohibits, in relevant part, the passage of any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L. Ed. 2d 17, 22 (1981) (quoting Cummings v. Missouri, 71 (4 Wall.) U.S. 277, 325-26, 18 L. Ed. 356, 364 (1867)) (internal quotation marks omitted). The policy underlying the Ex Post Facto Clause is to give effect to the fundamental principle that "persons have a right to fair warning of that conduct which will give rise to criminal penalties." Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind. 2006) (quoting Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992-93, 51 L. Ed. 2d 260, 265 (1977)).2

.....

Conclusion
We apply the seven Mendoza-Martinez factors to guide our evaluation of the defendant's claim that, as applied to him, the retroactive imposition of a lifetime registration period violates the Ex Post Facto Clause. Our task is not merely to determine whether there are more punitive or non-punitive factors, but to consider them collectively to determine whether the application of the challenged statute's effects upon the defendant are so punitive in nature as to constitute a criminal penalty. See Wallace, 905 N.E.2d 378-79.

The underlying conviction of the defendant for Child Solicitation was for a D felony, the lowest class of felony under Indiana's criminal code. Although the defendant was sentenced to the maximum term of three years, eighteen months were suspended to probation. Because of the nature of the offense, the then-prevailing statutes required him to register as a sex offender for ten years, which registration he completed.

As we collectively weigh the punitive and non-punitive nature of the seven factors as they apply to this defendant and his circumstances, we find that to apply the 2006 amendments so as to subject this defendant to a lifetime registration requirement violates the Ex Post Facto Clause of the Indiana Constitution.

We reverse the denial of the defendant's petition to remove the lifetime registration requirement and remand for further proceedings consistent with this opinion.

Andrews v State

11-21-2012 Indiana:

Andrews v State
No. 29A02-1112-MI-1166.

Thomas Andrews ("Andrews") filed a petition in Hamilton Circuit Court requesting that his name be removed from Indiana's sex offender registry. Specifically, Andrews, who was convicted of sex offenses in Massachusetts in 1984, argued that his name should be removed from the registry pursuant to our supreme court's decision in Wallace v. State, 905 N.E.2d 371 (Ind. 2009). Because we conclude that requiring Andrews to register as a sex offender violates Article 1, Section 24 of the Indiana Constitution prohibiting ex post facto laws, and that Indiana state courts do not have the authority to consider whether federal statutory penalties attach to Andrews's conduct, we reverse and remand with instructions to the trial court to grant Andrews's petition for removal from the sex offender registry.

Facts and Procedural History
In 1984, a grand jury in the Commonwealth of Massachusetts indicted Andrews for the following offenses under two separate cause numbers: six counts of rape and abuse of a child under cause number 84-1074 and two counts of indecent assault and battery of a child under the age of fourteen years under cause number 84-107 5. Andrews pleaded guilty to four of the six counts of rape and abuse of a child and to both counts of assault and battery of a child. The court imposed consecutive sentences for the convictions under the separate cause numbers, and in the aggregate, Andrews was ordered to serve a minimal term of executed prison time with several years of probation. Ultimately, Andrews was discharged from his probation for all convictions on or about December 14, 1989.

In 1993, Andrews, who had married, moved to Indiana to be closer to his wife's family.

In 1996, Andrews moved to Colorado, but then returned to Indiana in 1997. He has resided in Indiana since 1997. For over twenty-five years, Andrews has owned and operated a business that was eventually incorporated under Indiana law and does business as Pro Image & Associates, LLC. Andrews works from his home address, but travels to locations in and out of the state to meet with his company's clients.

In 2006, the State of Indiana notified Andrews that he was required to register as a sexually violent predator, and that he was required to register for life. Andrews registered as required by the State. But, on January 6, 2011, Andrews filed a petition requesting removal of his name from the registry and arguing that pursuant to our supreme court's 2009 decision in Wallace v. State, 905 N.E.2d 371 (Ind. 2009), he is not required to register as a sex offender. The State opposed Andrews's petition and the parties filed cross-motions for summary judgment.

The summary judgment hearing was held on November 17, 2011. At the hearing, the State argued that Wallace did not apply to Andrews's circumstances, but also that Andrews was required to register as a sex offender under the federal Sex Offender Registration and Notification Act, which Congress passed in 2006 (hereinafter referred to as "USSORNA"). On November 30, 2011, the trial court granted the State's motion for summary judgment and denied Andrews's motion. Andrews now appeals.1

.....

Indiana is the only state that has ever required Andrews to register as a sex offender, and he has resided in Indiana since 1997. But while Andrews may have a federal duty to register under US SORNA if he engages in interstate travel, and could be subject to prosecution in federal district court under 18 U.S.C. § 2250, if he fails to do so, this is not the issue before us.

Andrews has filed his petition in Indiana state court seeking removal of his name from Indiana's sex offender registry. After acknowledging that our state sex offender registry law does not run afoul of the Ex Post Facto Clause of the United States Constitution, our supreme court concluded in Wallace that Hoosiers are entitled to greater protection under the prohibition on ex post facto laws contained in the Indiana Constitution.8 Greater protection of Hoosiers's rights under the Indiana Constitution is not an uncommon principle in our state's jurisprudence.9 See Wallace, 905 N.E.2d at 378 (quoting State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002)) (stating "[t]he Indiana Constitution has unique vitality, even where its words parallel federal language").

Andrews, who on the record before us is an apparently rehabilitated and productive citizen of our state, was convicted of a sex offense almost thirty years ago, and well before Indiana enacted INSORA. Accordingly, pursuant to our supreme court's opinion in Wallace, we must conclude that Andrews's petition for removal of his name from Indiana's sex offender registry should have been granted.

Reversed and remanded with instructions to grant Andrews's petition for removal of his name and any other identifying information from Indiana's sex offender registry. VAIDIK, J. and BARNES, J., concur.

State v Hough

12-3-2012 Indiana:

State v Hough
No. 64A05-1203-MI-113.

Terry Hough ("Hough") filed a petition in Porter Superior Court requesting that his name be removed from Indiana's sex offender registry. Specifically, Hough, who was convicted of rape in Pennsylvania in 1993, argued that his name should be removed from the registry pursuant to our supreme court's decision in Wallace v. State, 905 N.E.2d 371 (Ind. 2009). The trial court granted Hough's petition and the State appeals.

Specifically, the State argues that Hough should not be removed from the sex offender registry because he would still be required to register under Pennsylvania's registry law, and he has an independent duty to register as a sex offender under the federal Sex Offender Registration and Notification Act. We affirm.

Facts and Procedural History
In 1993, Hough was convicted of rape in Montgomery County, Pennsylvania. He was ordered to serve two to five years incarceration. Hough was released to parole in 1997, and he completed his parole in 1998. Shortly after completing his parole, Hough moved to Indiana.

Pennsylvania enacted its first sex offender registry law, known as Megan's law, in 1996, while Hough was incarcerated in that jurisdiction. But Pennsylvania officials did not require Hough to register as a sex offender upon release from incarceration and/or parole because he notified Pennsylvania officials of his move to Indiana. Hough was told that he would be subject to Indiana's registration requirement, and he did register in Indiana. Appellant's App. p. 32. Hough also registered in Illinois because he was employed in that state. However, in 2007, Hough received a notice from the State of Illinois that he was no longer required to register as a sex offender. Appellant's App. p. 34.

On August 19, 2010, Hough filed a petition to remove himself from the Indiana sex offender registry. Hough claimed that he should be removed because his conviction occurred before Indiana and Pennsylvania enacted their sex offender registry laws, and argued that, pursuant to Wallace v. State, 905 N.E.2d 371 (Ind. 2009), his petition should be granted. In response, the State argued that under Pennsylvania's current sex offender registry law, Hough would be required to register for life, and therefore, Wallace is inapplicable to Hough's situation. The State also claimed that Hough has an independent duty to register under the federal Sex Offender Registration and Notification Act.

After holding a hearing on Hough's petition, the trial court issued an order granting Hough's petition to remove his name from the Indiana sex offender registry. The State filed a motion to correct error, which the trial court denied on February 10, 2012. The State now appeals.

....

Likewise, in the case before us, Indiana is the only state that currently requires Hough to register as a sex offender, and he has resided in our state since 1998. Pursuant to our supreme court's decision in Wallace, to continue to require that Hough register as a sex offender for a conviction pre-dating the enactment of INSORA would violate Indiana's constitutional prohibition against ex post facto laws. See Ind. Const. Art. 1, § 24; 905 N.E.2d at 384. For all of these reasons, we affirm the trial court's order granting Hough's petition to remove his name from the Indiana sex offender registry. Affirmed.

Doe v Phillips

6-17-2008 Missouri:

The issue in this case is now controlled by Doe v Keathley (2009).

Doe v Phillips
261 S.W.3d 611 (2008)

James F. Keathley (i.e., the State) appeals the judgment of the Jackson County Circuit Court enjoining the use of information obtained through an unlawful sex offender registration. On appeal, he claims the injunction was improper because the information has already been acquired, it is publicly available, and it is accessible only to law enforcement. His points are denied, and the judgment is affirmed.

.....

Conclusion
Pursuant to this court's decision in Doe v. Phillips, it is proper for a circuit court to issue an injunction prohibiting the use of information acquired through an unlawful registration process. That only certain persons will have access to the information does not impact the analysis. The judgment is affirmed.

Doe v Phillips

4-1-2008 Missouri:

The issue in this case is now controlled by Doe v Keathley (2009).

Doe v Phillips
259 S.W.3d 34 (2008)

The Circuit Court of Jackson County issued a judgment enjoining the Superintendent of the Missouri State Highway Patrol from publishing photographs and identifying information of registered sex offenders whose convictions predate the July 1, 1995, enactment of Missouri's Sex Offender Registration Act (SORA), Section 589.400 et seq., RSMo. The Superintendent appeals from the permanent injunction. For reasons explained herein, we affirm in part, reverse in part, and remand the cause to the circuit court with instructions to limit the scope of the injunction.

....

CONCLUSION
The judgment is reversed with regard to the scope of the permanent injunction. The cause is remanded to the circuit court with instructions to limit the injunction to prohibit the Superintendent from publishing photographs and other identifying information about the pre-1995 offenders that was obtained as a result of their SORA registrations. In all other respects, the judgment is affirmed.

Doe v Phillips

6-30-2006 Missouri:

The issue in this case is now controlled by Doe v Keathley (2009).

Doe v Phillips
194 S.W.3d 833 (2006)

Appellants are a group of Missouri residents. None of them have been adjudicated to be a sexually violent predator (SVP), but respondents allege all nonetheless are required to register as sex offenders because each has previously been convicted of or pled guilty to crimes that make them subject to the registration provisions of sections 589.400 to 589.425.1 The registration requirements, popularly known as "Megan's Law," require affected persons to register with designated authorities at various intervals and to notify authorities when they change their residence. They also permit publication of affected persons' names, addresses, photographs and prior triggering offenses.

Appellants filed suit in Jackson County against selected law enforcement officials attempting to prevent further enforcement of the sexual offender registry statutes through declaratory and injunctive relief. To protect their privacy, appellants have sued as Jane Does I-III and John Does I-VIII and are hereafter referred to as "the Does." They alleged that, while it may be proper to apply the registration and notification requirements to SVPs and other violent sexual offenders, it is unconstitutional to apply it to relatively minor offenders such as themselves. They appeal the judgment denying their claims.

During the pendency of this appeal, Missouri's Megan's Law was modified. H.B. 1698, 93rd Gen. Assem., 2nd Reg. Sess. (Mo.2006). The amended law expands restrictions on SVPs, adds additional crimes to its coverage, and excludes or allows petitions for removal from the registry for various non-violent offenses, including offenses of which some of the Does pleaded or were found guilty, effectively mooting those particular claims.

This Court rejects the other Does' arguments that Missouri's Megan's Law violates their due process and equal protection rights under the Missouri Constitution. This Court further rejects their arguments that the law violates Missouri's constitutional prohibitions of ex post facto laws, bills of attainder, and special laws.

The only respect in which this Court finds merit to the Does' challenge to Missouri's Megan's Law is an extremely narrow one. The Does are correct that the portions of the law imposing an affirmative duty to register based solely on pleas or convictions for conduct committed prior to enactment of Megan's Law on January 1, 1995, some eleven and one-half years ago, violates Missouri's constitutional prohibition of laws "retrospective in ... operation." To this extent, and only to this extent, Megan's Law's registration requirements may not be enforced as to this small group of persons.

This invalidation is very limited in nature. SVPs are still fully required to register and comply with all aspects of Megan's Law because their obligations are based on findings that they are SVPs and not merely on pre-Megan's Law criminal conduct. Persons who pled or were found guilty after January 1, 1995, or who committed additional crimes subject to Megan's Law after that date, are fully subject to Megan's Law's relevant requirements. Further, even as to those Does who may not be required to fulfill the affirmative duties imposed directly on them by Megan's Law, Missouri's constitutional prohibition on laws retrospective in their operation does not prohibit others from publishing information about them in the manner permitted by Megan's Law.

....

IV. CONCLUSION
Missouri's constitutional bar on laws retrospective in their operation compels this Court to invalidate Megan's Law's registration requirements as to, and only as to, those persons who were convicted or pled guilty prior to the law's January 1, 1995, effective date. This ruling applies only to the registration requirements. All other provisions of Megan's Law remain in effect as to these and all other persons subject to it. Further, the law is fully in effect as to all persons whose pleas or judgments of conviction were entered on or after its effective date of January 1, 1995, more than 11 years ago, or who committed additional crimes subject to Megan's Law thereafter, and is fully effective as to SVPs.

The judgment is affirmed in part and reversed in part, and the case is remanded.
All concur.

Woe v Spitzer

8-4-2008 New York:

Woe v Spitzer
571 F.Supp.2d 382 (2008)

The court held:

This is a civil rights action in which Plaintiff, referred to herein only by the pseudonym, "Alan Woe" ("Plaintiff") alleges a deprivation of his right to due process of law as guaranteed by the United States Constitution. Plaintiff seeks to have this court hold a provision of the New York State Sex Offender Registration Act of 1995, codified at Section 168-h(1) of the New York State Correction Law ("SORA"), unconstitutional.1 Presently before the court is Defendants' motion, pursuant to Rule 12 of the Federal Rules of Civil Procedure, to dismiss the complaint. For the reasons set forth below, the motion is granted and the complaint is dismissed.

The relevant facts supporting Plaintiff's claim are not in dispute and are set forth below.

Plaintiff is a designated sex offender pursuant to the terms of SORA. At the time of his designation, Plaintiff was required to register as a sex offender with law enforcement authorities for a period often years. That period began as of the date of enactment of SORA, January 21, 1996. Three days before the ten year period was set to expire, SORA was amended to provide for a twenty year period of registration for sex offenders classified within Plaintiff's category of risk. Thus, instead of Plaintiffs registration period expiring on January 21, 2006, it is now set to expire on January 21, 2016.

Plaintiff does not challenge the Constitutionality of SORA as a whole. Instead, this action is limited to the claim that the statutory amendment extending the registration period from ten to twenty years has deprived Plaintiff of his right to procedural due process as guaranteed by the Fourteenth Amendment to the United States Constitution. Specifically, Plaintiff argues that the newly amended statutory scheme deprives him of the procedural right to petition for relief from the twenty year registration requirement.

John Doe -v- Prosecutor, Marion County

1-23-2013 Indiana:

John Doe -v- Prosecutor, Marion County 1-23-2013 No. 12-2512.

John Doe -v- Prosecutor, Marion County 2-27-2012

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From 1-23-2013 Decision:

A recent Indiana statute prohibits most registered sex offenders from using social networking websites, instant messaging services, and chat programs. John Doe, on behalf of a class of similarly situated sex offenders, challenges this law on First Amendment grounds. We reverse the district court and hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors. * * *

We conclude by noting that Indiana continues to possess existing tools to combat sexual predators. The penal system offers speech-restrictive alternatives to imprisonment. Regulations that do not implicate the First Amendment are reviewed only for a rational basis. The Constitution even permits civil commitment under certain conditions. But laws that implicate the First Amendment require narrow tailoring. Subsequent Indiana statutes may well meet this requirement, but the blanket ban on social media in this case regrettably does not.

See Article: Indiana's ban on sex offenders using Facebook unconstitutional, court says See also: 7th Circuit strikes down Indiana statute banning sex offenders from social networking sites And this excellent North Carolina Blog Review (Includes case from NC on Appeal).

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PDF Decision. [Google Scholar version.]

State -v- Daniels

12-31-2012 North Carolina:

State -v- Daniels

This is a very long read, but one portion is worth the effort, where the statute says "at any place" and the court declared that portion vague, place was not defined so that a reasonable person would know what it means. Accordingly, the statute was held unconstitutional AS APPLIED to this fellow and his circumstances.

See portion which begins with:

II. Standing

In the State's second argument on appeal, the State contends the trial court erred in declaring N.C. Gen. Stat. § 14-208.18(a)(3) unconstitutional because Defendant lacked standing to raise a facial challenge to the constitutionality of N.C. Gen. Stat. § 14-208.18(a)(3). We agree that Defendant did not have standing to raise a facial challenge to N.C. Gen. Stat. § 14-208.18(a)(3). However, Defendant had standing to bring an as-applied challenge against N.C. Gen. Stat. § 14-208.18(a)(3), with regard to the facts surrounding his arrest for being "at any place[,]" Id., on 6 May 2009 and 7 May 2009, on the issue of whether N.C. Gen. Stat. § 14-208.18(a)(3) is unconstitutionally vague.

"A litigant who challenges a statute as unconstitutional must have standing. To have standing, he must be adversely affected by the statute." State v. Barker, 138 N.C. App. 304, 307, 531 S.E.2d 228, 230, cert. denied, 352 N.C. 592, 544 S.E.2d 787 (2000) (citation and quotation marks omitted). .... ....

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From North Carolina Criminal Law Blog:

Portion of Sex Offender Premises Restriction Held Unconstitutional

In one of its final rulings of 2012, the court of appeals held in State v. Daniels that a portion of the law limiting where some registered sex offenders may go is unconstitutionally vague. In Daniels, the defendant was charged with two counts of violating G.S. 14-208.18(a)(3), which makes it a Class H felony for certain sex offenders to knowingly be “at any place where minors gather for regularly scheduled educational, recreational, or social programs.” The charges stemmed from two visits by the defendant to county parks. In the first, the defendant came to the park to meet his daughter, who was watching a tee ball game at one of the park’s youth baseball fields. In the second, the defendant was playing softball on an adult ball field at a park that also had a youth field.

In his defense, the defendant filed a motion to declare G.S. 14-208.18 unconstitutional on a mix of First Amendment and due process grounds. The trial court granted the motion, declaring that G.S. 14-208.18(a)(3) is unconstitutionally overbroad because it infringes on the defendant’s freedoms of association and religion, and unconstitutionally vague in that it fails to put people of ordinary intelligence on notice of the precise conduct the law prohibits. The trial court further declared G.S. 14-208.18(a)(2), the 300-foot rule described here, unconstitutional, as the facts of the case could have implicated that provision as well. Having deemed the statute unconstitutional, the judge dismissed the charges against the defendant.

The State made three arguments on appeal. ...continued...