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Valenti v. Hartford City

United States District Court, N.D. Indiana, Fort Wayne Division

December 1, 2016

BRIAN VALENTI, on his own behalf and on behalf of a class of those similarly situated, Plaintiff,
v.
HARTFORD CITY, INDIANA, Defendant.

          OPINION AND ORDER

          THERESA L. SPRINGMANN JUDGE

         The Plaintiff, Brian Valenti, on behalf of himself and others similarly situated, has sued the City of Hartford City, Indiana. (See Class Action Compl. for Injunctive and Declaratory Relief and Individual Compl. for Damages, ECF No. 1.) The Plaintiff asserts that Hartford City Ordinance 2008-01, titled “Regulation of Sex Offenders, ” as amended by Ordinance 2015-10 (Amended Ordinance 2008-01 or the Ordinance), is unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment, and violates the Indiana Constitution's prohibition against ex post facto punishment. For the due process challenge, the Court has certified a class pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2). (See Order, ECF No. 43.) The class includes all persons who currently, or will in the future, live in, work in, or visit Hartford City, Indiana, and who are, or will be, sex offenders as defined in Amended Ordinance 2008-01. The relief sought for the class is injunctive and declaratory.[1] The Plaintiff also seeks damages on his own behalf.

         The Plaintiff has moved for Partial Summary Judgment [ECF No. 34] as to liability. The Defendant responded by filing a Cross-Motion for Summary Judgment [ECF No. 37]. For the reasons stated herein, the Court grants in part and denies in part the Plaintiff's Motion for Partial Summary Judgment [ECF No. 34], and grants in part and denies in part the Defendant's Cross-Motion for Summary Judgment [ECF No. 37].

         STATEMENT OF FACTS

         A. Sex Offender Ordinance

         Ordinance 2008-1, Regulation of Sex Offenders, went into effect in Hartford City on February 4, 2008. It applies to any “Sex Offender, ” defined in the Ordinance as “an individual who has been convicted of or placed on deferred adjudication for a sexual offense involving a person under eighteen (18) years of age for which the individual is required to register as a sex offender under Indiana law IC-35-42-4 and IC-11-8-8.” Hartford City, Ind., Ordinance 2008-1, § 8.50.2 (2008). A Sex Offender violates the Ordinance if he or she knowingly enters a “Child Safety Zone.” Id. § 8.50.3.B. Child Safety Zones include:

public parks, private and public schools, public library, amusement arcades, video arcades, indoor and outdoor amusement centers, amusement parks, public or commercial and semi-private swimming pools, child care facility, child care institution, public or private athletic complexes, crisis center or shelter, skate park or rink, public or private youth center, movie theatre, bowling alley, scouting facilities, and Office of Protective Services.

Id. § 8.50.2. It is also an offense under the Ordinance for a Sex Offender to “knowingly loiter on a public way within 300 feet of a Child Safety Zone.” Id. § 8.50.3.C. A “public way” is “any place to which the public or a substantial group of the public has access and includes, but [is] not limited to, streets, shopping centers, parking lots, transportation centers, restaurants, shops and similar areas that are open to the use of the public.” Id. § 8.50.2.

         When the Ordinance was first enacted in February 2008, the term “loiter” was defined as “standing, sitting idly, whether or not the person is in a vehicle or remaining in or around an area.” Id. After the Plaintiff initiated this litigation, Hartford City amended Ordinance 2008-01 to replace that definition of “loiter” with the following:

Loiter: means remaining in a place or circulating around a place under circumstances that would warrant a reasonable person to believe that the primary purpose or effect of the behavior is to enable a sex offender to satisfy an unlawful sexual desire, or to locate, lure, or harass a potential victim.

Id. § 8.50.2, as amended by Hartford City, Ind., Ordinance 2015-10 (2015).

         The penalty for violating the Ordinance is a fine of up to $200 for each offense. Id. § 8.50.6.

         B. The Plaintiff

         The Plaintiff moved to Hartford City in 2014 with his wife and minor child. In 1993, the Plaintiff was convicted in California of a sex offense involving a child under the age of 14, and is therefore required to register as a sex offender under Indiana law. Shortly after he moved to Hartford City, a member of the police department informed the Plaintiff about the Ordinance.

         The Plaintiff alleges that the Ordinance has caused him to significantly curtail his activities in Hartford City, including going to the library with his child, entering his child's school, going to Hartford City parks, bowling with his family, attending church where there are separate youth services, joining the YMCA, having his child participate in YMCA activities, and voting at his designated polling place. The Plaintiff maintains that when he lived in California, he would frequently go to his child's school to work with staff there because his child has learning disabilities, but that he is now unable to do so and his child has suffered because of this. Referring to the original definition, the Plaintiff asserts that he does not know what loiter means, nor does he know all the locations where it would be impermissible for him to loiter. He alleges that the restriction is burdensome, as he cannot wait in the parking lot of places where his child may go bowling or participate in or attend sporting events. In fact, the Plaintiff received a citation from the Hartford Police Department when he was a passenger in his brother's car, which was parked at his brother's house across the street from a school. He was waiting to be taken to pick up his own child from another school.

         The Plaintiff asserts that the revised definition of loiter remains unclear and causes him uncertainty. He questions whether driving by a park three or four times in the course of running errands would be considered “circulating around a place.” He also complains that the definition does not depend on what he is doing, but on how others might perceive it.

         ANALYSIS

         Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A court should only deny a motion for summary judgment when the nonmoving party presents admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep't of Corrs., 652 F.3d 726, 731 (7th Cir. 2011) (first citing United States v. 5443 Suffield Terrace, 607 F.3d 504, 510 (7th Cir. 2010); then citing Swearnigen-El v. Cook Cnty. Sheriff's Dep't, 602 F.3d 852, 859 (7th Cir. 2010)).

         A. Ex Post Facto Punishment

         The Plaintiff alleges that the Ordinance, as applied to him, violates the Indiana Constitution's prohibition against ex post facto punishment. He requests that the Court find that the Defendant is liable on this issue, and conduct a trial to determine his damages. The Defendant disagrees that the Ordinance retroactively punishes the Plaintiff, and requests summary judgment in its favor.

         The Indiana Constitution provides that “[n]o ex post facto law . . . shall ever be passed.” Ind. Const. art. I, § 24. “The underlying purpose of the Ex Post Facto Clause is to give effect to the fundamental principle that persons have a right to fair warning of that conduct which will give rise to criminal penalties.” Wallace v. State, 905 N.E.2d 371, 377 (Ind. 2009) (citing Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind. 2006)).

         In Wallace, the Indiana Supreme Court confronted an ex post facto challenge to the Indiana Sex Offender Registration Act (SORA), as brought by a defendant who had been charged and convicted with a sex offense and had served his sentence prior to the enactment of the statute. 905 N.E.2d at 373. In determining that the Act, as applied to the defendant, violated Indiana's ex post facto clause, the court adopted the “intents-effect” test, as articulated by the United States Supreme Court in Smith v. Doe, 538 U.S. 84 (2003) (upholding the constitutionality of Alaska's Sex Offender Registration Act). Wallace, 905 N.E.2d at 378; see also Tyson v. State, 51 N.E.3d 88, 93 (Ind. 2016) (noting the Indiana Supreme Court's adoption of “the Supreme Court's intent-effects test as the proper vehicle for analyzing whether [sex offender registration] statute[s] impose[] a punishment-which cannot be done retroactively pursuant to our Ex Post Facto Clause-or whether the statute[s ] [were] merely part of a non-punitive, regulatory scheme”). Under the intents-effects test, “a court first determines whether the legislature meant the statute to establish civil proceedings. If the intention of the legislature was to impose punishment, then that ends the inquiry, because punishment results.” Id. at 378 (citing Smith, 538 U.S. at 92). “If, however, the court concludes that the legislature intended a non-punitive regulatory scheme, then the court must further examine whether the statutory scheme is so punitive in effect as to negate that intention thereby transforming what had been intended as a civil regulatory scheme into a criminal penalty.” Id. at 378 (citing Smith, 538 U.S. at 92).

         Here, there is no dispute that the Defendant committed his criminal offense well before the Ordinance was enacted. Additionally, the parties do not dispute that the Ordinance was intended to advance a non-punitive purpose: public safety. The sole issue, then, is whether the Ordinance, as applied to the Defendant, is so punitive in effect that it has been transformed into a criminal penalty despite its regulatory intent.

         1. Effects Test

         As instructed by the Indiana Supreme Court in Wallace, when determining the “effects” of a regulatory scheme, the Court must weigh seven-factors:

“[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.”

Id. at 379 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)) (footnotes omitted). No one factor is determinative. Id.

         Notably, following the Wallace decision, the Indiana Court of Appeals decided Dowdell v. City of Jeffersonville, a case involving an ex post facto challenge to a city ordinance that prohibited convicted sex offenders from entering public parks. 907 N.E.2d 559, 562 (Ind.Ct.App. 2009). After weighing the seven factors, the court concluded that the ordinance, as applied to Dowdell, violated Indiana's ex post facto clause because “it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when [Dowdell's] crime was committed.” Id. at 571.

         The Defendant attempts to undercut the significance of Dowdell by pointing to Doe v. Town of Plainfield, 893 N.E.2d 1124 (Ind.Ct.App. 2008), a pre-Wallace decision in which the court of appeals found that a statute prohibiting sex offenders from entering public parks does not violate Indiana's ex-post facto clause. Although Town of Plainfield was decided prior to Wallace, the Defendant argues that the reasoning of Town of Plainfield remains applicable because the Indiana Supreme Court denied transfer on August 20, 2009, see Doe v. Town of Plainfield, 919 N.E.2d 549 (Ind. 2009), even though Wallace had already been decided. But as correctly noted by the Plaintiff, Rule 58(b) of the Indiana Rules of Appellate Procedure provides that “[t]he denial of a Petition to transfer shall have no legal effect other than to terminate the litigation between the parties in the Supreme Court.” Accordingly, this Court does not consider the denial of transfer as indicating agreement with the Town of Plainfield decision and, when applying the seven-factors, places limited significance on Town of Plainfield. See Dowdell, 907 N.E.2d at 569 (noting that Town of Plainfield was decided “without the benefit of Wallace”).

         On the same day it issued Wallace, the Indiana Supreme Court issued Jensen v. State, 905 N.E.2d 384 (Ind. 2009), which also involved an ex post facto challenge to SORA. Unlike Wallace, who had served his sentence prior to the enactment of SORA, Jensen committed his offense after the legislature enacted SORA. Therefore, he challenged an expansion to SORA that required him to register as a sex offender for life, as opposed to the previously-enacted registration period of ten years. Id. at 389-90. The court concluded that SORA, as applied to Jensen, does not violate Indiana's ex post facto clause. Id. at 394. First, the court noted that the 2006 amendments had changed the duration of the registration requirements that already applied to Jensen upon his conviction, but had changed nothing else with regard to Jensen's actual disclosure requirements. 905 N.E.2d at 394. Second, Jensen, unlike Wallace, would be able to petition the court after ten years for reconsideration of his status as a sexually violent predator. Id.

         The Defendant attempts to distinguish Wallace and Dowdell by characterizing the Plaintiff as a Jensen sex offender, as opposed to a Wallace sex offender. The Defendant contends that the Plaintiff is like Jensen because he was already required to register as a sex offender when the Ordinance was passed. While that may be true, he was not prohibited from entering Hartford City Child Safety Zones or loitering near those areas by virtue of that registration. Those restrictions first came about in 2008 when the Ordinance was passed. Were this case about extending the duration of existing registration requirements, the Court might grant the Defendant's point. However, in the context of this case and the Plaintiff's ex post facto claim, Jensen is not an applicable case.

         The Court now turns to the seven-factor effects test to determine whether the Ordinance violates the Indiana Constitution's prohibition on ex post facto punishment.

         a. Affirmative Disability or Restraint

         In Dowdell, the Indiana Court of Appeals found that a city ordinance, which imposed a lifetime prohibition on convicted sex offenders from entering the city's public parks “is unquestionably a restraint.” 907 N.E.2d at 566. As the court observed:

[m]uch of a community's social life occurs in public parks-youth and adult sporting events, picnics, community celebrations and events, to name but a few-and an ordinance that fully and forever prohibits one from taking part in such activities-or from taking a walk in the park-is a real and significant restraint.
As for Dowdell specifically, he has a minor son who plays Little League games in Jeffersonville's parks, and in the past, Dowdell has been a Little League coach. Dowdell would like to attend his son's games. He would also like to enter the City's parks without his son to engage in various activities such as adult baseball, adult basketball, fishing, golf, watching fireworks over the Ohio River, and taking walks with his significant other. The Ordinance constitutes a significant restraint because it prohibits Dowdell from engaging in these social and familial activities.

Id.

         Unlike the ordinance in Dowdell (or even the ordinance in Plainfield) the Ordinance here contains restrictions that extend beyond the Plaintiff's access to public parks. It also prohibits entry into, or loitering within 300 feet of, numerous additional venues: schools; public libraries; amusement arcades, centers, or parks; video arcades; non private swimming pools; child care facilities and institutions; public or private athletic complexes; crisis centers or shelters; skate parks or rinks; youth centers; movie theaters; bowling alleys; scouting facilities; and the Office of Protective Services. A Child Safety Zone Map [ECF No. 34-1] specific to Hartford City highlights as ...


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