Gibson v. Indiana Dept. of Correction

899 N.E.2d 40

James GIBSON, Mark Lamar, and John Doe, on their own and on behalf of a class of those similarly situated, Appellants-Plaintiffs/Cross-Appellees, v. INDIANA DEPARTMENT OF CORRECTION, Prosecutors of Allen, Marion and Vanderburgh Counties, Allen County Sheriff's Department, and Vanderburgh County Sheriff's Department, Appellees-Defendants/Cross-Appellants.

No. 49A04-0803-CV-165.

Court of Appeals of Indiana.

December 29, 2008.

Kenneth J. Falk, Gavin M. Rose, ACLU of Indiana, Indianapolis, IN, Attorneys for Appellants.

Steve Carter, Attorney General of Indiana, David L. Steiner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellees Indiana Department of Correction and Prosecutors of Allen, Marion and Vanderburgh Counties.

Keith W. Vonderahe, Jean M. Blanton, Ziemer, Stayman, Weitzel & Shoulders, LLP, Evansville, IN, Attorneys for Appellee Vanderburgh County Sheriff's Department.

John O. Feighner, Aaron J. Butler, Haller & Colvin, P.C., Fort Wayne, IN, Attorneys for Appellee Allen County Sheriff's Department.

OPINION

CRONE, Judge.

Case Summary

Effective July 1, 2007, the Indiana statutes providing for a sex offender registry were amended to create a sex and violent offender registry ("Registry"). Ind.Code § 36-2-13-5.5 (amended by P.L. 216-2007, § 52). Thus, one who is convicted of murder,¹ voluntary manslaughter,² attempted murder, or attempted voluntary manslaughter who fails to register required information with local law enforcement authority in the county where he/she resides, works, and/or is enrolled in school, commits a felony. Ind.Code §§ 11-8-8-7, -17. In the fall 2007, James Gibson and other former violent offenders ("Appellants") filed a complaint asserting that their inclusion on the Registry and the imposition of the various registration requirements violate the Indiana Constitution, specifically Sections 23 and 12 of Article 1. The complaint was filed against the Indiana Department of Correction and various county sheriff's departments and prosecutors ("Appellees").³

Following a hearing, the Marion Superior Court, on March 13, 2008, issued findings of fact, conclusions of law, and entry of preliminary injunction regarding the enforcement of lifetime registration by violent offenders. Appellants, now certified as a class,⁴ appeal the denial of the preliminary injunction with respect to the ten-year registration requirement for violent offenders. Appellees, also having received class certification,⁵ cross-appeal the portion of the preliminary injunction that bars lifetime registration by certain violent offenders.⁶ We affirm in part and reverse in part with instructions.

Issues

In resolving this case, we must address the following issues:

I. Whether the imposition of the Registry's requirements on persons convicted of murder, voluntary manslaughter, attempted murder, and attempted manslaughter violates Article 1, Section 23 of the Indiana Constitution;

II. Whether the imposition of the Registry's requirements on persons convicted of murder, voluntary manslaughter, attempted murder, and attempted manslaughter violates Article 1, Section 12 of the Indiana Constitution;

III. Whether the Appellants demonstrated either irreparable harm or that the balance of harms and public interest favors a preliminary injunction; and

IV. Whether the trial court erred in entering a preliminary injunction limiting the Registry requirements to ten years rather than lifetime.

Facts and Procedural History

Pursuant to recently amended statute, a person who has committed murder, or voluntary manslaughter, or who has attempted or conspired to commit these crimes, must comply with the Registry's requirements. See Ind.Code § 11-8-8-5 (defining sex or violent offender, as amended by P.L. 216-2007, § 13). The Legislature has set out the duration of the duty to register below:

(a) Except as provided in subsections (b) through (e), a sex or violent offender is required to register under this chapter until the expiration of ten (10) years after the date the sex or violent offender:

(1) is released from a penal facility (as defined in IC 35-41-1-21) or a secure juvenile detention facility of a state or another jurisdiction;

(2) is placed in a community transition program;

(3) is placed in a community corrections program;

(4) is placed on parole; or

(5) is placed on probation;

whichever occurs last. The department shall ensure that an offender who is no longer required to register as a sex or violent offender is notified that the obligation to register has expired ....

(b) A sex or violent offender who is a sexually violent predator is required to register for life.

(c) A sex or violent offender who is convicted of at least one (1) offense under section 5(a) of this chapter that the sex or violent offender committed:

(1) when the person was at least eighteen (18) years of age; and

(2) against a victim who was less than twelve (12) years of age at the time of the crime;

is required to register for life.

(d) A sex or violent offender who is convicted of at least one (1) offense under section 5(a) of this chapter in which the sex offender:

(1) proximately caused serious bodily injury or death to the victim;

(2) used force or the threat of force against the victim or a member of the victim's family, unless the offense is sexual battery as a Class D felony; or

(3) rendered the victim unconscious or otherwise incapable of giving voluntary consent;

is required to register for life.

(e) A sex or violent offender who is convicted of at least two (2) unrelated offenses under section 5(a) of this chapter is required to register for life.

Ind.Code § 11-8-8-19.

Thus, in the counties where they reside, work, and/or are enrolled in school, such violent offenders must provide information including their full name, alias, date of birth, gender, race, height, weight, hair color, eye color, distinguishing features, social security and driver's license numbers, vehicle description and license plate number, address, a description of the offense, and a recent photograph. Ind.Code § 11-8-8-8. Registration must be updated annually and in person. Ind.Code § 11-8-8-14. In addition, throughout the year, offenders must make timely notification of any changes in residence, work, or schooling. Ind.Code § 11-8-8-11. Violation of the Registry requirements may constitute a class D felony or a class C felony, depending on the specifics of the violation. Ind.Code § 11-8-8-17.

The resulting Registry is to be maintained by the Indiana Department of Correction with a related, though less comprehensive, website⁷ established and maintained by Indiana sheriffs. Ind.Code §§ 11-8-2-12.4, -13; Ind.Code § 36-2-13-5.5. Law enforcement must make yearly visits to offenders to verify addresses. Ind.Code § 11-8-8-13. The legislative goal of the Registry is to "inform the general public about the identity, location, and appearance of every sex or violent offender residing within Indiana." Ind. Code § 36-2-13-5.5.

Appellant James Gibson was convicted of murder in 1985 in Marion County, received a fifty-year prison sentence, and was released from prison in April 2007. App. at 63. Gibson, although he has secured housing and employment and has complied with the Registry's requirements, asserts that the Registry and its requirements (lifetime registration as a violent offender) will make it difficult for him to find future jobs and housing. Id. There is no indication that he has been convicted of any other offenses listed under Indiana Code Section 11-8-8-5(a) or that he is a sexually violent predator. However, his victim was a two-year-old child. Gibson v. State, 515 N.E.2d 492 (Ind.1987).

Appellant Mark Lamar was convicted of attempted murder in 1986 in Vanderburgh County, received a prison sentence, and was released from probation in 1998. App. at 66; Lamar v. State, 514 N.E.2d 1269 (Ind.1987) (noting victim and Lamar had been friends for sixteen years, thus victim was not under twelve). In 2000, Lamar was sentenced to prison for driving while intoxicated, which is not an offense listed under Indiana Code Section 11-8-8-5(a). App. at 66. Released in 2003 and with no subsequent charges, Lamar currently works part time and cares for his mother. Id. Although he will comply with the Registry, Lamar, now in his fifties, strongly disagrees with it and maintains that it will burden his life. Id. There is no indication that he is a sexually violent predator.

Appellant John Doe was convicted of murdering an adult in 1989 after being waived into adult court. Id. at 53. Since his release from parole a few years ago, Doe has become employed as a paralegal at a firm in an Indiana city and has become actively involved in his community.⁸ Id. Fearing loss of his job and way of life, Doe is anonymously challenging the Registry and its lifetime requirements as they apply to him due to his one conviction. Id. at 53, 69. He has never been classified as a sexually violent predator, nor is there any indication that he has any other convictions. Id. at 69.

Iris Wade was convicted of murder in January 1978. Id. at 72; Wade v. State, 271 Ind. 282, 392 N.E.2d 456 (1979). Her victim was over the age of twenty-one. App. at 72. After serving seven years in prison, she was released in 1986 and placed on one year of probation. Id. Thereafter, Wade attended college, operated a daycare center, and worked as an assistant teacher for the Head Start program. Id. at 73. Now in her seventies and retired, Wade was told to register and has done so. Id. She has never been found to be a sexually violent predator, nor have any other felony charges been filed against her. Id. at 72. More than ten years have elapsed since her release from probation. Id. Thus, if the trial court's preliminary injunction is upheld, she will no longer be required to comply with the Registry's requirements.⁹

On August 20, 2007, Gibson filed a Class Action Complaint for...