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Bleeke v. Lemmon

Supreme Court of Indiana

April 16, 2014

DAVID BLEEKE, Appellant (Plaintiff below)

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Appeal from the Allen Superior Court, No. 02D01-1005-PL-164. The Honorable Nancy Eschcoff Boyer, Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 02A05-1201-PL-25.

ATTORNEYS FOR APPELLANT: Daniel G. McNamara, Patrick L. Proctor, Fort Wayne, Indiana.

ATTORNEYS FOR APPELLEES: Gregory F. Zoeller, Attorney General of Indiana, David A. Arthur, Stephanie L. Rothenberg, Deputy Attorneys General, Indianapolis, Indiana.

David, Justice. Dickson, C.J., Rucker, Massa, and Rush, JJ., concur.


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David, Justice.

In this case, a parolee convicted of a sex crime against an adult female challenges a number of his parole conditions, including several that prohibit him from having contact with children--even his own. He also challenges the constitutionality of a state treatment program for sex offenders that he must participate in as part of his parole, claiming that under the program he is required to provide self-incriminating statements about his underlying offense and sexual history without immunity and under the threat of being found in violation of his parole.

We conclude that some of his parole conditions are impermissible on several grounds, but find no fault with the remainder. We likewise find no constitutional flaw in the state treatment program.

Facts and Procedural History

On January 31, 2005, David Bleeke was convicted of residential entry and attempted criminal deviate conduct in Allen County, Indiana, and sentenced to ten years in the Indiana Department of Correction. His victim was an adult woman who was, at the time of the crime, over the age of twenty-one. Bleeke was incarcerated until March 19, 2008, when he was released to a community transition program. Bleeke completed the community transition program on April 24, 2009, and was released to statutorily mandated parole. He is to remain on parole until 2015.

Bleeke's Parole Conditions

The conditions of Bleeke's parole were spelled out in a standardized form initially provided to him before his assignment to the community transition program (and then again when he was released on parole): State Form 49108. Those conditions, among other things, required Bleeke to participate in, and successfully complete, a court-approved sex offender treatment program: the Indiana Sex Offender Management and Monitoring Program (" SOMM" ). As part of the SOMM program, Bleeke was required to admit guilt for his offense; refusal to do so, or to otherwise deny responsibility for the offense, would result in him being unsuccessful in his treatment and would violate one of his parole conditions. He was also required to disclose any prior sex-related crimes by way of a " sexual history disclosure exam," administered under a polygraph required by the parole conditions.

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The conditions relevant to these requirements provided that:

1. You shall enroll in, actively participate in and successfully complete an approved sex offender treatment program. You must maintain steady progress toward all treatment goals and may not change treatment providers without prior approval of your parole agent. Prompt payment of any fees is your responsibility.
2. You shall sign any waiver of confidentiality, release of information, or any other documents required to permit your parole agent and/or behavioral management or treatment providers to examine any and all records, to collaboratively share and discuss your behavioral management conditions, treatment progress, and parole stipulation needs as a team. This permission may extend to: (1) sharing your relapse prevention plan and treatment progress with your significant others and/or your victim and victim's therapist as directed by your parole agent or treatment provider(s), and (2) sharing of your modus operandi behaviors with law enforcement personnel.
21. You shall actively participate in offense specific mental health treatment program(s) approved and ordered by your parole agent at your own expense. You will contact the approved/designated provider within seven (7) days of release to parole to schedule an appointment unless an appointment was already scheduled prior to release on parole. Treatment is considered a behavioral management requirement of your parole and may include plethysmograph or polygraph testing or similar assessment/management tools. Termination from treatment or non-compliance with other required behavioral management requirements will be considered a violation of your parole release agreement. Subsequent treatment referrals, if any, will be at the direction of your parole agent. Should you request and be permitted to change treatment providers, stricter stipulations may be applied.
22. You shall participate in and complete periodic polygraph testing at the direction of your parole agent or any other behavioral management professionals who are providing treatment of [sic] assisting your parole agent in monitoring your compliance with your parole rules and special stipulations.

(App. at 159--60.)

As part of Bleeke's community transition program, in October 2008 Bleeke was ordered to take an " instant offense" polygraph, asking him if he committed the acts underlying his prior conviction. The examination process required Bleeke to sign a form stating that he requested the polygraph " without duress, coercion, force, intimidation, or promises of immunity," authorizing the examiner to share the results with his probation office " and other applicable agencies for whatever purposes they may determine," and acknowledging that the examiner was obliged to comply with " any and all State and Federal laws involving the administration of polygraph testing, which includes proper statutory disclosure and reporting requirements." (App. at 148, 158.) Bleeke refused to sign the form, but offered to proceed with the polygraph examination anyway--instead the examiner stopped the examination and reported Bleeke's non-compliance. Bleeke was ordered to spend a weekend in jail for violating the conditions of the program.

Bleeke was again ordered to conduct an instant offense polygraph after his release from the weekend in jail; this time he signed the consent form and completed the examination. He stated that he completed the form this time because " I did not want to go to jail or back to prison." (App. at 148.) The polygraph examiner concluded that Bleeke " ha[d] not told the entire truth

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concerning his alleged sexual contact." (App. at 313.) As a result, his provider labeled him as uncooperative and concluded that because he " continues to maintain his innocence to the charges he was convicted for . . . counseling for sex abuse issues is not appropriate." (App. at 314.) Bleeke was then assigned to another provider, with whom he continues to participate, although he has been told that he cannot complete the SOMM program unless he admits his guilt.

Form 49108 also contained limitations on Bleeke's conduct aimed at restricting his contact with children and establishing intimate relationships with other adults. These conditions were imposed by the Indiana Parole Board without any prior individualized assessment of their applicability to Bleeke, but were ordered under the auspices of the Parole Board's authority to impose additional parole conditions that are " reasonably related to the parolee's successful reintegration into the community and not unduly restrictive of a fundamental right." See Ind. Code § 11-13-3-4(b) (2010). The conditions relevant to these restrictions provided that:

4. You shall not touch, photograph (still or moving), correspond with (via letter or e-mail), and/or engage in " small talk" or unnecessary conversation with any child, including your own, either directly or via third party, or attempt to do any of the preceding without written approval in advance by your parole agent in consultation with your treatment provider. You must never be in any vehicle or any residence with any child, including your own, even if other adult(s) is/are present, without written approval in advance by your parole agent in consultation with your treatment provider. You must report any inadvertent contact with children to your parole agent within twenty-four (24) hours of contact.
5. You must not reside, visit or be within one thousand (1,000) feet of public parks with playgrounds, pools, rides, and/or nature trails; schools, day care centers, public swimming pools, public beaches, theaters, or any other place where children can reasonably be expected to congregate.
15. You shall refrain from " cruising" activity, frequenting areas where potential victims can be encountered.
17. You shall not stay overnight with any adult and/or establish an intimate and/or sexual relationship with any adult without prior approval by your parole agent and treatment clinician. You must also report whether the person you are having a relationship with has children under the age of eighteen (18) and/or if children under the age of eighteen (18) reside in the person's home.
19. You shall not possess any items on your person, in your vehicle, in your place of residence, or as a part of your personal effects which attract children or that may be used to coerce children to engage in inappropriate or illegal sexual activities. You will not attempt to persuade, whether by words or actions or both, a child to enter a vehicle, structure, or enclosed area, or to otherwise relocate.
20. You shall not join or be associated with any group which promotes activities involving children under eighteen (18) years of age, such as, but not limited to: church or religious youth groups, Boy Scouts, Girl Scouts, Cub Scouts, Brownies, YMCA, YWCA, youth sports teams, public parks, etc.

(App. at 159--60.)

Bleeke was married at the time of his conviction, and stayed married through his incarceration. He and his wife had a son while he was incarcerated, and while Bleeke was in prison he was allowed visits

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with his wife and son. They had a second son shortly after he was released on mandatory parole. But once he was released from prison, the conditions on Form 49108 prohibited him from having contact with (or photographs of) his eldest son. They also prohibited him from being present at the birth of his second son and from having a relationship with the child (although he was allowed a single photograph). And when Bleeke was released from the community transition program, his parole conditions also prohibited him from living with his wife and children.

Bleeke's Litigation

Bleeke filed suit in the United States District Court for the Northern District of Indiana, seeking to enjoin the enforcement of the parole conditions restricting access to his children and wife or, alternatively, requesting that the Parole Board first conduct some sort of hearing as to whether those conditions were warranted. Bleeke v. Server, 2010 WL 299148 at *1 (N.D. Ind. January 19, 2010). The federal court dismissed some of Bleeke's claims, but found that the Parole Board " had a constitutional obligation to provide some procedural safeguard allowing for an individualized determination as to [Bleeke's] risk to his own children before imposing [Bleeke's] parole conditions," and issued a preliminary injunction enjoining enforcement of those conditions until such an assessment was made. [WL] at *13.

As a result of the federal court order, the Parole Board held a special hearing on May 3, 2010, concerning Bleeke's parole conditions. Bleeke's SOMM counselor provided a written statement to the Parole Board, saying that " Bleeke has given no reason to believe he is at risk to molest a child. He denies any sexual attraction to children. He also denies deviant sexual fantasies and denies intent to molest a child." (App. at 318.) She also stated that his denials were supported by SOMM-ordered polygraphs. Bleeke testified himself at the hearing and repeated those denials.[1] Bleeke's parole supervisor agreed that there was no evidence that he presented a risk to children, and Bleeke's wife testified that Bleeke had never been inappropriate with, or harmed, his children.

The director of the SOMM program testified that the actuarial program used by SOMM for its determination of recidivism rates did not assess the probability that the recidivistic tendency of a particular offender whose initial victim was an adult would later manifest in an act against a child (a shift in behavior known as " crossing-over" ). He also acknowledged that for Bleeke to cross-over in a way that was dangerous to his sons, he would have to cross-over in a number of factors: victim gender, age, and familial relation. He conceded that evaluative processes existed that could provide a more dynamic risk assessment as to the likelihood of such an occurrence, but one had not been done on Bleeke; nor could he speak personally as to the risk Bleeke posed to children because he had not evaluated Bleeke. He would, he said, rely on Bleeke's SOMM counselor.

No witnesses or evidence were presented that showed Bleeke had posed, or would pose, a risk to his children or any other children. And Bleeke again maintained his innocence to the underlying attempted criminal deviate conduct conviction. Nevertheless, after the hearing the Parole Board again imposed all of the same parole conditions on Form 49108. It requested Bleeke's counseling team provide the Parole Board an additional assessment in

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ninety days detailing Bleeke's compliance with his treatment protocols.[2]

Bleeke then filed suit in the Allen County Superior Court, seeking a declaratory judgment as to the constitutionality of those parole conditions that prohibited him from seeing his children or being in the same home as his wife, along with the statutes underlying those parole conditions. He alleged violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, and Article 1, sections 12 and 23 of the Indiana Constitution. He similarly claimed that many of the conditions and supporting statutes were unconstitutionally vague, overbroad, or unduly restrictive of his fundamental right to association.

He sought a preliminary injunction barring the Parole Board from enforcing those parole conditions related to restricting his presence near children and establishing a relationship with his wife. Bleeke also challenged the constitutionality of the entire SOMM program, claiming that the requirement for him to admit his guilt and prior offenses and take polygraph examinations, with no promise of confidentiality or immunity, violated the Fifth Amendment to the United States Constitution.

The trial court granted his request for a preliminary injunction, concluding that the challenged provisions " unconstitutionally impinge on his fundamental right to familial integrity" in a way that " has not been narrowly tailored to serve any State interest." (App. at 78.) It therefore enjoined the Parole Board from enforcing Conditions 4, 5, 17, and 19 with respect to Bleeke's wife and children, but otherwise left the remaining conditions in place.

Bleeke then filed a motion for summary judgment as to the remainder of his claims. The trial court extended and converted the preliminary injunction into a permanent injunction, enjoining the Parole Board from ever enforcing Conditions 4, 5, 17, and 19 with respect to Bleeke's family, after noting that the Parole Board did not contest that claim in its response to Bleeke's motion for summary judgment. It also limited the enforceability of Condition 4's requirement to report any " inadvertent contact" with children other than his own, in accordance with appellate interpretation of similar provisions, but otherwise denied Bleeke summary judgment on his other claims and instead granted it in favor of the Parole Board. Bleeke appealed.

The Court of Appeals reversed that portion of the trial court's order granting summary judgment in favor of the Parole Board and denying summary judgment to Bleeke. Bleeke v. State, 982 N.E.2d 1040, 1054 (Ind.Ct.App. 2013). It concluded that the statute imposing Condition 5 on Bleeke did not apply as it was enacted after Bleeke committed his underlying offense; that the statute classifying Bleeke as an offender against children was unconstitutionally overbroad as it was applied to Bleeke; that the Parole Board failed to ensure that Bleeke's parole conditions related to protecting children were reasonably related to his successful reintegration into the community as required by statute; and that certain other parole conditions were unconstitutionally vague or overbroad. Id. at 1047--53. It also held that

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the SOMM program violated Bleeke's Fifth Amendment rights because it forced him to provide potentially incriminating statements at the risk of violating his parole or facing future criminal charges. Id. at 1053--54. We granted transfer and thereby vacate the Court of Appeals opinion, with the exception of those portions we summarily affirm as explained below. Bleeke v. State, 987 N.E.2d 521 (Ind. 2013) (table); Ind. Appellate Rule 58(A).

Standard of Review

An appellate court reviews the award or denial of summary judgment through the same lens as a trial court. Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937 (Ind. 2012). Summary judgment is only appropriate when the moving party shows that there are no genuine issues of material fact with respect to a given issue or claim. Id. at 936; Ind. Trial Rule 56(C). The non-moving party then bears the burden of coming forward with evidence designated to show that a genuine issue of material fact does exist. Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d 598, 602 (Ind. 2011). All designated evidence and reasonable inferences must be construed in favor of the non-moving party, and doubts resolved against the moving party. Id. But when the facts are undisputed and the question is only one of law, our review is de novo. Id.


Bleeke's issues on appeal can be summarized into three primary categories. He challenges the specific conditions restricting his access to minors as being unconstitutional, and argues that others fail to comply with certain statutory requirements. He also argues that several of the parole statutes are facially unconstitutional in the manner by which they classify sex offenders. And, finally, he argues that the SOMM program is both facially unconstitutional and unconstitutional as applied to him.

The Parole Board, in a limited cross-appeal, argues that Bleeke has inappropriately named certain defendants in this action, and that regardless, Bleeke has waived all of his arguments.[3] The Parole Board concedes, however, that it no longer seeks to impose the parole conditions in a manner which would restrict Bleeke's relationships with his children and wife. There is therefore no issue before this Court relating to the trial court's order permanently enjoining enforcement of that aspect of those conditions.

I. Bleeke's Additional Conditions from Form 49108

The Indiana Code provision governing the conditions of parole for parolees mandates certain conditions be assigned for sex offenders. See Ind. Code § 11-13-3-4(g)(2). It also lays out other conditions that may be assigned by the Parole Board. See generally Ind. Code § 11-13-3-4. And the provision also provides that " [t]he parole board may also adopt, under IC 4-22-2, additional conditions to remaining on parole and require a parolee to satisfy one (1) or more of these conditions." Ind. Code § 11-13-3-4(b) . However, " [t]hese conditions must be reasonably related to the ...

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