Sex offender names ordered removed for ‘right to travel’ violation

Six men required to register as sex offenders after moving to Indiana can have their names removed from the sex offender registry, the 7^th Circuit has held, finding that the state’s registration law discriminates between offenders who have consistently lived in Indiana and those who more recently moved into the state. A dissenting judge, however, disagreed with the majority’s holding that the registration law burdens the plaintiffs’ right to travel.

Judge Ilana Rovner authored the Wednesday opinion in Brian Hope, et al. v. Commissioner of Indiana Department of Correction, et al., 19-2523. Judge Diane Wood joined the majority opinion, while Judge Amy St. Eve dissented.

The case involves the required registration of six men — Brian Hope, Gary Snider, Adam Bash, Joseph Standish, Patrick Rice and Scott Rush — under the Indiana Sex Offender Registration Act. Each man committed their sex crimes 25 to 35 years ago, each was required to register as a sex offender in another state, and each relocated or returned to Indiana after serving their sentences.

SORA was enacted in 1994 and amended in 1996 to require registration by anyone convicted elsewhere of a state offense that was “substantially equivalent” to an Indiana offense requiring registration. The law was amended again in 2006, this time to apply to a “person who is required to register as a sex offender in any jurisdiction.”

In 2009, the Indiana Supreme Court handed down Wallace v. State, 905 N.E.2d 371 (Ind. 2009), holding that the requirements of SORA could not be imposed on anyone whose offenses predated the enactment of the statute. Thus, as long as a person whose offense predated SORA remained an Indiana resident, they were not required to register as a sex offender.

“This case is before us now, however, because, despite the Wallace decision, persons with pre-SORA convictions who relocate to Indiana from another state where registration was required or relocate from Indiana to another state requiring registration and then back again, must register in Indiana, even if Indiana would not have required them to register had they committed their offenses in Indiana and never left,” Rovner wrote.

Hope and Snider filed a complaint for declaratory and injunctive relief in the Indiana Southern District Court, and Judge Richard Young entered the injunction in April 2017.  That case was consolidated with one brought by Rice, Bash and Rush.

In 2019, the district court held that “SORA violates Plaintiffs’ fundamental right to travel, Plaintiffs’ right to equal protection of the laws, and the Constitution’s prohibition against retroactive punishment.” The state appealed from that ruling, but the 7^th Circuit affirmed.

In the majority’s analysis, Rovner pointed to what she called a “Gordian knot” in the case. In briefing, the state asserted that Snider was required to register in Indiana under both the 1996 “substantially equivalent” amendment to SORA and the 2006 “other jurisdiction” amendment.

However, “At the (Federal Rule of Civil Procedure) 30(b)(6) deposition the State maintained that Snider would not have to register under the other jurisdiction prong because he arrived in Indiana before that requirement was added. And at oral argument, the State asserted that Snider could not be required to register because of the substantial equivalency requirement alone because of the Supreme Court decision in Wallace,” Rovner wrote.

“We do not (know) what else to call this other than ‘a mess,’” she said.

In attempting to untangle the “knot,” the majority made two conclusions.

First, Wallace “prevents the State from requiring new (or returning) residents to Indiana to register under the substantial equivalency prong alone, if their crime occurred before the date that SORA would have required registration for the substantially equivalent crime in Indiana.” Second, Wallace “also prevents the State from requiring registration under the other jurisdiction prong alone if the new (or returning) resident relocated to Indiana before 2006, when the other jurisdiction requirement was added to SORA.”

“As we shall see, ultimately these distinctions about why an offender was required to register are not relevant to the outcome of this case,” Rovner wrote. “Instead, our outcome depends on the fact that two people who committed the same crime at the same time have different registration requirements depending on their history of residency in Indiana.

“Nevertheless, because the State has created much confusion with its bifurcation of the ‘statutory law’ and the ‘constitutional law,’ we will make clear that we are proceeding with our analysis of the case with the understanding that the State cannot apply the substantial equivalency registration requirement to any plaintiff who committed his offense before that offense became registrable in Indiana,” the judge continued. “As a matter of Indiana law, it may only require registration of pre-SORA offenders by those who were required to register in another jurisdiction.

“This in turn is what gives rise to the plaintiffs’ right-to-travel claim: having relocated from other states that required them to register, they are burdened with an obligation to register in Indiana that would not be imposed on a similarly-situated offender who has lived in Indiana continuously since committing his offense.”

Agreeing with the right-to-travel claim, the majority held that Indiana places “exclusive reliance” on another state’s decision to require sex offender registration, thus using travel as a “trigger” for registration in Indiana. That creates two classes of Hoosier citizens: those who lived in Indiana at the time of their offenses and remained there, and those who relocated to Indiana from a state requiring registration after the 2006 amendment.

“This sets up the very sort of multi-tiered state citizenship that the Supreme Court’s right-to-travel cases prohibit,” Rovner wrote. “… This discriminatory classification is a penalty in and of itself and can only survive if it satisfies strict scrutiny.”

Finding that the strict scrutiny burden was not met, Rovner said the court was “pointed to no evidence indicating, nor does the State suggest, that individuals who began to reside in Indiana after the other jurisdiction provision of SORA was enacted are more likely to re-offend than those who were already residents prior to that time.”

“… (H)owever small in number the plaintiffs may be, Indiana has assigned them to a class of citizenship that is inferior to that enjoyed by other, similarly situated, Indianans, and for the plaintiffs, it is their relocation from other states that has resulted in that second-class status,” Rovner concluded.

St. Eve, however, said she does not think the right to travel is implicated.

Her dissent first pointed to the 2016 Indiana Supreme Court decisions in Tyson v. State, State v. Zerbe and Ammons v. State, which she said hold that “the effect of maintaining an out-of-state registration in Indiana was not punitive, regardless of when or where the registrable crime had been committed.” Those rulings relied on the question of whether the “marginal effect” of SORA is punitive.

“Under (the majority’s) logic, offenders who relocated to Indiana prior to July 1, 2006, and who were not required to register in Indiana until 2006 would be exempt from a later registration requirement under Wallace. That interpretation misapprehends Wallace’s more recent progeny: Tyson, Zerbe, and Ammons,” St. Eve wrote.

“While those cases dealt with plaintiffs who moved to Indiana after it enacted SORA’s other-jurisdiction provision in 2006, the Indiana Supreme Court did not base its decisions on that factor. Rather, it held, across three distinct factual patterns, that SORA’s retroactive application does not violate the state’s Ex Post Facto Clause as long as the offender is ‘already required to register in another jurisdiction.’ … That condition is satisfied here.”

Further as to the U.S. Constitution, “The Privileges or Immunities Clause of the Fourteenth Amendment simply does not prohibit a state from incidentally burdening travel to or from the state,” St. Eve continued. “It guarantees only ‘the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State.’

“… Because both old and new Indiana residents are treated equally under SORA and Indiana’s Ex Post Facto Clause, I respectfully dissent from the majority’s holding that either law violates the right to travel.”

St. Eve would remand to the district court for a rational-basis review.