The Indiana Court of Appeals reversed a decision by Clark County Superior Court No. 1 banning convicted sex offender Eric Dowdell from going to Jeffersonville city parks.
An ordinance, which the Jeffersonville City Council passed in January 2007, prohibited sex offenders from entering Jeffersonville’s municipally owned parks, but allows for them to request an exemption.
On Tuesday, the court published its 2-1 decision that Jeffersonville’s ordinance is unconstitutional as it applies to Dowdell because he served his sentence and completed his requirement to register on the sex offender list before the ordinance was passed.
Dowdell was convicted of sexual battery of a 13-year-old girl in 1996. His duty to register as a sex offender ended in 2006. He applied for an exemption to watch his son play Little League baseball.
Jeffersonville City Court Judge Ken Pierce and former Clark County Circuit Court Judge Abe Navarro denied Dowdell’s request for an exemption, citing Dowdell’s lengthy criminal history. Judge Vicki Carmichael ruled in November that the ordinance was not unconstitutional.
Ken Falk, legal director of the Indiana Civil Liberties Union, declared the court’s decision a victory and said he believes the ruling will impact others, not just Dowdell.
“I think what the court is saying is when you have someone no longer required to register [as a sex offender], that certainly seems to be an important factor,” said Falk. “We have argued in Mr. Dowdell’s case and the Plainfield case that a blanket prohibition is not constitutional.”
The ICLU also is challenging an ordinance in Plainfield, which prohibits anyone on the sex offender registry from entering parks in the town.
The Court of Appeals ruled in favor of Plainfield, but Falk said the case will go before the Indiana Supreme Court. If the Supreme Court rules against Plainfield, it would have even broader effects on Jeffersonville’s ordinance.
Larry Wilder, the city’s attorney who wrote and defended the ordinance, said it would be speculative to say that Tuesday’s decision will affect anyone other than Dowdell.
“If you read the opinion, this ruling is that the ordinance is only unconstitutional as applied to Dowdell and not on its face,” Wilder said.
He said the ordinance was originally drafted using Plainfield’s ordinance as a model. That town does not allow for exemptions, so Wilder argues that Jeffersonville’s ordinance is less restrictive.
The Court of Appeals decision cites Wallace v. State, a Supreme Court ruling issued one week before Wilder presented his oral argument in the Dowdell case.
“Wallace changed everything,” Wilder said. “The law in Indiana was favorable to our ordinance until the [week] before the oral argument.”
On April 30, the Indiana Supreme Court overturned the conviction of Richard P. Wallace for not registering as a sex offender. Because he completed his probation for child molesting two years prior to the enactment of the state’s Sex Offender Registration Act in 1994, the Supreme Court ruled that forcing him to register as a sex offender would punish him “beyond that which could have been imposed when his crime was committed.”
While the Court of Appeals’ decision would only apply to people who were no longer required to register as a sex offender when the ordinance was passed, the opinion was critical of the “excessive” steps that must be taken for a convicted offender to receive an exemption.
Chief Judge John Baker described the exemption process as “extraordinarily burdensome and virtually illusory.” He notes that the offender must provide a “legitimate reason” for the exemption and would have to go through the application process each time a new activity arises.
He writes that the offender is required to provide a “plethora of documents” to the judge, and even then, the judge still must find that “good cause” exists for the exemption. Baker wrote that the ordinance never specifies what would constitute “good cause.”
The court also found that by requiring the offender to notify a sponsoring league organization before requesting an exemption, the offender also is exposed to humiliation.
Wilder said the city council may need to change its ordinance to reflect the court decisions.
“The city council will have to decide if they want to ask for a hearing or transfer this case to join with Plainfield or draft something consistent with the court’s ruling,” Wilder said. “The law is fluid. ... It changes all the time.
“The law changed, and now we’ll have to determine where to go from here.”
Clark County
June 10, 2009
Indiana Court of Appeals: Dowdell allowed in Jeffersonville parks
Court calls exemption procedure ‘extraordinarily burdensome’
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