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National

IN: Indiana Supreme Court suggests declaratory judgment a better avenue to challenge collateral consequences

[floridaactioncommittee.org 4/30/18]

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.

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  1. Anonymous

    “The only thing necessary for the triumph of evil is for good men to do nothing.”

    Evil just got a government supported win. Fantastic.

    The pile of injustice associated with this system is above the atmosphere.

  2. steve

    Hmmm…why don’t we all do that for IML.

  3. Mr. TDAL

    Please!

    There are another actions to be taken! I
    On two occasions I have demanded trial.
    Under felony indictment our founders to make it so ANY WITNESSES can be called to the stand via subpoenas. So if one calls the original victim to refute claims of abnormality, confront that directly. Extenuating circumstance avowed. This strategy should not be undertaken lightly as other bad behind might be disclosed. Ex post claimants also have an opportunity to give a civics lesson to the jury. The original sex case mandated by law a formal document known as a judgement of conviction. Among other information a date is acknowledged, with words like ” an indetermanent period not to exceed 60 months consecutively. The fact that the state can provide no similar document containing the word, “Life” can be a problem for the prosocutor. These are presentable facts to a jury. Obtaining a lawyer is costly so sometimes pro se is best.It’s still a case about character so man up!

    It is my belief opting for trial is also the quickest way to the supreme court of each state.

  4. Chris F

    When did “collateral consequence” become the golden ticket to allow anything to be done to someone after a conviction regardless of the US Constitution?

    Originally, the term was used to describe unavoidable collateral consequences of having a conviction on a record. It refereed to things like being denied to be a lawyer or FBI agent as an unavoidable and logical “collateral consequence” of having that conviction on your record.

    The sex offender registry and laws created against those on it are NOT an unavoidable “collateral consequence” of conviction, they are a collateral consequence of unconstitutional laws and the registry. Someday, I hope we get some actual active brain cells into the judiciary.

  5. mike r

    This is good Chris.. I am telling you the courts are fed up with this crap and are extremely frustrated that no one is challenging these laws correctly. This judge is straight telling the guy what he needs to file and all he has to do is prove the following to get injunction relief as well. This is out of the Millard case where they won the declaratory issues but I do not believe that they will get relief because they failed to state the proper elements for injunction relief which enjoins the state officials. I believe that the Plaintiff’s in that case will have to refile for injunction relief addressing the following factors before they can be relieved of the requirement to register. I may be wrong but that is how I am reading it. Declaratory relief I believe just makes it much easier to do since it has already been determined unconstitutional. Correct me if I am wrong:

    A party seeking a permanent injunction must prove: (1) actual success on the merits; (2)
    irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm
    that the injunction may cause the opposing party; and (4) the injunction, if issued, will not
    adversely affect the public interest. Sw. Stainless, LP v. Sappington, 582 F.3d 1176, 1191 (10th
    Cir. 2009). The trial court is vested with “necessarily broad” discretion in making this
    determination.
    Plaintiffs have submitted no evidence or argument whatsoever to meet their burden of
    proof on factors (2) through (4), and Defendant has had no opportunity or reason to submit
    contrary evidence and arguments. Under these circumstances, permanent injunctive relief has no
    support in the record and only declaratory relief is appropriate.
    Based on the foregoing, it is
    ORDERED that judgment shall enter declaring that the Colorado Sex Offender
    Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiffs David Millard, Eugene
    Knight, and Arturo Vega, violates the Cruel and Unusual Punishment Clause of the Eighth
    Amendment to the United States Constitution; it is
    FURTHER ORDERED that judgment shall enter declaring that the Colorado Sex
    Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiff Arturo Vega,
    violates procedural due process requirements of the Due Process Clause of the Fourteenth
    Amendment to the United States Constitution; it is
    FURTHER ORDERED that judgment shall enter declaring that the Colorado Sex
    Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiffs David Millard,
    Eugene Knight, and Arturo Vega, violates substantive due process requirements of the Due
    Process Clause of the Fourteenth Amendment to the United States Constitution; and it is
    FURTHER ORDERED that Plaintiffs as prevailing parties shall be entitled to an award
    reasonable attorney’s fees as part of the costs, to be determined by the Court pursuant to 42
    U.S.C. § 1988(b).

  6. David Kennerly, The Government-Driven Life

    Oh, I guess that must be OUR Eugene Knight! Good work, Eugene!

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