Indiana Supreme Court suggests declaratory judgment a better avenue to challenge collateral consequences.
Although the Indiana Supreme Court ruled against a registered sex offender father trying to attend his son’s school events, they did give him some guidance on how to go about his challenge.
Douglas Kirby plead guilty to child solicitation eight years ago and was sentenced to eighteen months probation. While he was on probation (and until 2015) he was permitted to come on campus to see his son’s school activities.
That was until Indiana passed a law in 2015 making it a felony for him to ” knowingly or intentionally enter school property”, regardless of whether his own child had an event. Kirby challenged the law, lost at trial, won on appeal, but ultimately lost again at the Indiana Supreme Court, which held the Court could not offer relief from a “collateral consequence”, just from an actual sentence. Since the restriction on entering school property was a collateral consequence of registration (as opposed to registration itself, or any express condition of his sentence), they were unable to offer relief.
However, in an unusual opinion, the Supreme Court took the opportunity to offer Kirby some guidance on what type of action he should bring, that might be successful. They wrote, “the post-conviction rules generally allow challenges only to a conviction or sentence. While we thus affirm the denial of post-conviction relief, we note that the post-conviction rules do not bar the petitioner from pursuing his claim in a declaratory judgment action.”
A copy of the decision can be found here: https://www.in.gov/judiciary/opinions/pdf/04271801lhr.pdf
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Ok, Hello everyone, I am “THE” guy in question concerning this case! Basically what the Supreme Court said was that I could not ask for a Post Conviction Relief because the Declaratory Judgement Action should have been the better avenue for us to pursue. So while my court date is a mere days away, we will see what happens. The Attorney General is still fighting tooth and nail to see to it that I am not able to attend my sons games. Some facts for all of you this was a victimless crime, it was an undercover police officer posing as a 15 year old girl on the internet. I had an inappropriate conversation with him and here I am today, 8 years later fighting to see my son play sports, who I have had custody of since he was 9. Granted what I did was wrong, was the worst mistake of my life, owning is easy, telling my then 9 year old son that his dad royally screwed up was the hardest day of my life. For 5 years I was able to attend my sons games, school functions, take him to the school and play ball, etc etc, then Indiana law makers pass this idiotic law in 2015 and my life has been living hell ever since, and I’ve been fighting the law ever since. If they think for a minute I’m going to lay down and roll over, they better think again. The law is wrong, the law itself is an Ex Post Facto and the Judicial System knows it. I’m fighting back, and I won’t stop until I win, or until some men with low level offenses with kids and families like me come forward and want to join forces and want to hire a lawyer and battle this out in court. I fight for what I believe in, and I will fight for my son, and my family! If you are reading this, and you or someone you know wants to join forces, I have a fantastic lawyer who truly believes what they are doing is wrong.
Doug – we sincerely appreciate you sharing and we wish you the best. If there is ANY help that FAC can be to your case, please reach out to legal@floridaactioncommittee.org.
I just read Greer v. Buss, 918 N.E.2d 607, 615 (Ind. Ct. App. 2009). The Court DID rule that a part of a registry law was, indeed, a violation of the state’s ex post facto law. It’s nice that the state’s Supreme Court actually referred you to a case that was favorable to you. Unfortunately, another case cited, Lemmon v. Harris, 949 N.E.2d 803, 805 (Ind. 2011) ruled that retroactive enforcement of registry statutes does NOT constitute an ex post facto violation, basically holding that the new requirements are not punishment. Same old crap. Mr. Kirby will likely have to look to the federal courts for help. As I’ve said before, I’d like to see legislators and judges try living on the registry for a year, and then see if it qualifies as punishment or not to them.
Yeah my name is Stan I live in Columbus Indiana going through the exact same thing I would love to get with you and talk
ok in plain English please what did the judges tell him to do or file?
like im a 5 year old and i am hearing this for the first time please
I believe a Declaratory Judgement decision would be whether his original obligation to register further obligated him to follow any subsequent new laws which were tied to his original registration requirement.
So as a result of his conviction he was compelled to register. At the time registration didn’t come with many or I suppose any additional obligations other than that he had to register for however long on whatever schedule.
After his conviction, the legislature passed this new law which only limits registered persons, its application is a consequence of being registered.
So Douglas would ask the court to decide if he is obligated to follow a law, which is triggered by his registration, that was not on the books when his registration began.
Think of it as an ex post facto complaint but because it is a collateral consequence not specifically a punishment it’s called Declaratory Judgement, the court will declare if a law that did not exist in the past, which has an apparent impact on the present and future, can be applied retroactively.
That’s the best example I can think of. Just like the registry is “administrative” not “punitive” he can’t seek ex post facto relief from “punishment” but he can ask if a new regulation really can be apied to him.
It does point out the frustration that many people who contribute to this website express when it looks like the courts aren’t fixing things. The courts don’t write the laws, the legislators do. In many cases, judges disagree with the applicable law, but are bound by it themselves. I think that was the point of posting this case, the interesting thing about the judge giving a registered sex offender advice about what to do next.
I’m sorry. But I’m not a lawyer or paralegal. While I’m interested in stuff like this, it would be helpful if there was something in these articles to “interpret” the “lawyer-ese” in these articles and what this actually means for the parties involved in each case. Google translate doesn’t have a “lawyer-ese” translation tool LOL.
declaratory judgment
n. a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. While this borders on the prohibited “advisory opinion,” it is allowed to nip controversies in the bud. Examples: a party to a contract may seek the legal interpretation of a contract to determine the parties’ rights, or a corporation may ask a court to decide whether a new tax is truly applicable to that business before it pays it.