IN- Jeffersonville's sex offender law could get update

9-29-2009 Indiana:

JEFFERSONVILLE — The future of Jeffersonville’s sex-offender ordinance is unclear, as the Indiana Supreme Court has decided not to take a case in which the Indiana Court of Appeals sided against the city.

City Councilman Keith Fetz, who introduced the sex-offender measure, said the council is waiting as new versions of the ordinance are being drafted.

The ordinance banning sex offenders from entering city parks was originally passed in January 2007. It allowed for offenders to request an exemption if they could show “good cause” for entering a park.

Eric Dowdell, who was convicted of sexual battery of a 13-year-old girl in 1996, applied for such an exemption so that he could watch his son play Little League baseball.

Initially he was denied but, following a legal challenge, the Court of Appeals ruled in June that Jeffersonville’s ordinance was 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.

Larry Wilder — the Jeffersonville attorney who wrote, then later defended, the ordinance — is working on revisions. He said an update that bans only those presently on the sex offender registry is being considered. Dowdell was not required to register at the time he was trying to enter a park.

Additionally, changes to the exemption process are also being considered, Wilder said.

In the Court of Appeals ruling, Chief Justice John Baker described the exemption process as “extraordinarily burdensome and virtually illusory,” noting 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.

Wilder said that an ordinance with no exemption process could be an option.

“In my personal opinion, I like the [exemption process] being in the ordinance,” Fetz said. “I truly believe that some people do decide to change their lives and get on the right path.”

An ordinance without exemptions has worked for Plainfield, a town just outside of Indianapolis. Its parks ordinance simply bans those who are on the sex offender list, said Plainfield Town Manager Rich Carlucci.

If someone on the list shows up at a park facility, the person is given a warning first, then fines.

Ken Falk, legal director of the Indiana Civil Liberties Union, not only worked on Dowdell’s challenge, but also on a challenge of the Plainfield ordinance. However, Plainfield’s ban was upheld as constitutional.

The difference, explains Falk, were the type of challenges being made. Dowdell’s was a challenge of the ordinance, specifically as it applied to him. Plainfield’s was a challenge of whether it was unconstitutional on its face to ban sex offenders from parks.

“The court didn’t want to go that far,” he said.

Falk said he didn’t believe the Plainfield ruling would make the future bans more restrictive because it doesn’t have an exemption process.

The biggest factor in the Dowdell case was that it was being enforced retroactively, he said.

In the Dowdell ruling, the Court of Appeals cites Wallace v. State, a Supreme Court ruling that 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.

Wilder said that updates to the Jeffersonville ordinance could be in front of the council by early October. ..Source.. by DAVID A. MANN