Spencer v. O'Connor

• Decision Date: 30 March 1999
• Docket Number: No. 49A02-9805-CV-466,49A02-9805-CV-466
• Citation: 707 N.E.2d 1039
• Parties: Shawn SPENCER and Ray Bridwell, individually and on behalf of a class of those similarly situated, Appellants-Plaintiffs, v. Catherine O'CONNOR, in her official capacity as the Executive Director of the Indiana Criminal Justice Institute, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 1039

707 N.E.2d 1039

Shawn SPENCER and Ray Bridwell, individually and on behalf of a class of those similarly situated Appellants-Plaintiffs, v. Catherine O'CONNOR, in her official capacity as the Executive Director of the Indiana Criminal Justice Institute, Appellee-Defendant.

No. 49A02-9805-CV-466.

Court of Appeals of Indiana.

March 30, 1999.

Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, Attorney For Appellants.

Jeffrey A. Modisett, Attorney General of Indiana, Geoffrey Slaughter, Special Counsel to the Attorney General, Cindy M. Lott, Chief Counsel, Special Services Division, Indianapolis, Attorneys for Appellee.

OPINION

GARRARD, Judge

Case Summary

This appeal concerns the constitutionality of Indiana's Sex Offender Registration statute (the "Act"). Shawn Spencer and Ray Bridwell (the "Appellants") are both convicted sex offenders who have been released from confinement and are now residing in Indiana. Spencer pled guilty to child molesting in 1991. Bridwell was convicted of three counts of child molesting in 1993. Both were imprisoned and both now have their names listed in Indiana's Sex Offender Registry (the "Registry").

The Appellants filed a lawsuit against Catherine O'Connor, in her official capacity as the director of Indiana's Criminal Justice Institute (the "Institute"). The lawsuit alleges that the Appellants' inclusion in the Registry violates the prohibition on ex post facto laws contained in Article I, Section 10 of the United States Constitution and Article I, Section 24 of the Indiana Constitution, since the Appellants committed their offenses prior to July 1, 1994, the effective date of the Act. The Appellants also challenge the Institute's method of distributing the Registry. The Appellants filed a motion for summary judgment and the State filed a cross-motion for summary judgment. The trial court entered summary judgment in favor of the State.

Issues

I. Whether Indiana's Sex Offender Registry statute violates the prohibition on ex post facto laws contained in the federal Constitution and the Indiana Constitution to the extent that it allows the inclusion of persons who committed their offenses prior to the Act's effective date.

II. Whether the Indiana Criminal Justice Institute's practice of distributing the Registry to any person requesting a copy violates Indiana law.

Discussion and Decision

Indiana's Sex Offender Registration statute was enacted effective July 1, 1994. IND.CODE § 5-2-12-1, et seq. Like many states' sex offender registration laws, ¹ Indiana's law provides for both registration and notification and applies to certain classes of sex offenders. ² IND.CODE § 5-2-12-4. The registration component requires those offenders convicted after June 30, 1994 to register with local authorities in the communities in which they reside. The offender must provide local law enforcement officials with certain information including the offender's name, any aliases, date of birth, sex, race, height, weight, eye color, Social Security number, driver's license number, home address, a description of the offense, the date of conviction, and the sentence imposed. IND.CODE § 5-2-12-6. A sex offender released from custody must register within seven days of his release. IND.CODE § 5-2-12-5(a). If an offender moves, he must provide his new address to the authorities in the community where he last registered and he must register with the new community. IND.CODE §§ 5-2-12-8(a), 5-2-12-5(a). Knowingly or intentionally failing to register is a Class D felony. IND.CODE § 5-2-12-9. An offender's duty to register expires ten years after he has been released from prison or placed on probation or parole, whichever occurs last. IND.CODE § 5-2-12-5(b).

The notification component of the Act requires the Institute to maintain the Registry and distribute it to certain mandatory recipients. IND.CODE § 5-2-12-11. The Institute maintains the Registry along with the Family and Social Services Administration to ensure that it is distributed to organizations providing services to children, as required under statute. IND.CODE § 5-2-6-3(a)(10). ³ In addition to the specified entities receiving the Registry, the Institute will also distribute the Registry to any entity or individual who requests it. The only exception is that the Institute will not release the Registry to offenders currently in prison. The State is required to update the Registry every six months. IND.CODE § 5-2-12-10. The offender information is collected from various sources, including the Department of Correction, the State police, prosecuting attorneys, sheriffs, and probation officers. While the registration portion of the Act requires the offender to submit more extensive information, the Registry itself contains only the offender's name and aliases, the offender's Social Security number, the citation for the offense committed, the date of conviction, and sentence imposed. The Registry does not contain the offender's home address, however, it does list the county or city where the offender intends to live. Although the registration requirement imposed on offenders applies only to offenders convicted after June 30, 1994, the Registry itself may include all persons convicted of sex offenses regardless of the date of conviction. IND.CODE § 5-2-6-3(b). ⁴

I. Ex Post Facto Prohibition

The Appellants argue that their inclusion in the Registry violates the ex post facto prohibition included in both the federal and Indiana Constitutions. The United States Constitution provides that "[n]o state shall ... pass any ... ex post facto Law." U.S. CONST. art. I, § 10. The Indiana Constitution provides that "[n]o ex post facto law ... shall ever be passed." IND. CONST. art. I, § 24. Both parties acknowledge, and we agree, that the ex post facto analysis under Indiana law is the same as under the federal Constitution. See Crawford v. State, 669 N.E.2d 141, 150 (Ind.1996); see also State ex rel. Dorton v. Circuit Court of Elkhart County, 274 Ind. 373, 412 N.E.2d 72 (1980).

The Ex Post Facto Clause prohibits states from enacting 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, 21 (1981). "[T]he focus of the ex post facto inquiry is not on whether a legislative change produces some sort of 'disadvantage,' ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable." California Dep't. of Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 1602 n. 3, 131 L.Ed.2d 588, 593 n. 3 (1995). In the present case, the Act does, in fact, apply retroactively to the Appellants; thus, the specific issue to be addressed is whether the registration and notification provisions inflict "punishment," in which event the Ex Post Facto Clause would prohibit their application.

A. Definition of Punishment Under the Ex Post Facto Clause

Our courts have not previously established a clear test to determine what constitutes punishment under the Ex Post Facto Clause. Nor has the Supreme Court articulated a formula for identifying legislation that falls within constitutional ex post facto prohibition. See Morales, 514 U.S. at 505, 115 S.Ct. at 1603, 131 L.Ed.2d at 603. However, we note that, in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), the Supreme Court used the same test under the Double Jeopardy and Ex Post Facto Clauses, leading us to conclude that the test for punishment is the same for both clauses. Recently, in State v. Hurst, 688 N.E.2d 402 (Ind.1997), our supreme court discussed punishment in the context of the Double Jeopardy Clause.

In Hurst, the defendant Hurst was driving his car on a county road, failed to yield to an oncoming car at an intersection, and caused a deadly collision. Hurst, 688 N.E.2d at 403. Hurst was fined $61.50 for failing to yield the right-of-way, a Class C infraction, and paid the fine. Id. Later, the State charged Hurst with reckless homicide, a Class C felony. Hurst filed a motion to dismiss arguing that the State violated the Double Jeopardy Clause by prosecuting him for reckless homicide when he had already been fined for failure to yield the right-of-way, and the trial court granted Hurst's motion. Id. The State appealed and our supreme court reversed the trial court's decision. Id.

In reversing, the court addressed the issue of whether the imposition of a fine was "punishment," thus implicating the Double Jeopardy Clause's prohibition on the subsequent prosecution. Adopting the "intents-effects" test articulated in the Supreme Court's Hendricks opinion and in United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), our supreme court stated that determining whether a sanction is punishment is a two-step process. First, we must determine whether the legislature intended the proceedings to be civil or criminal. In making this determination, we may examine the declared purpose of the legislature as well as the structure and design of the statute. Ursery, 518 U.S. at 279, 116 S.Ct. at 2147, 135 L.Ed.2d at 561. If the intent was civil, we must next ask whether the "statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention to deem it civil." Hurst, 688 N.E.2d at 404. The second part of the test requires the party challenging the statute to provide "the clearest proof" of the punitive purpose or effect of the statute. Id. Thus, in determining whether a sanction is civil or criminal, we cannot look solely to the label given to it by the legislature, but must also examine whether it is so punitive in effect as to no longer be properly called a civil sanction. Id.

B. Legislative Intent

Applying this test, we first look to the Act to see if we may discern the legislature...