good morning ladies and gentlemen before we start today's or arguments i'll just say for the record that judge rovner is with us you can't see you're right there but she's on the screen and you will see her and she will be participating you might want to make sure that the sound system catches up with everything that's said so with that in mind we will turn to our st case for today hope against the commissioner in indiana department of corrections mr holler there's no question that as a matter of indiana statutory and constitutional law the plaintiffs are subject to indiana's sex offender registry the state's registry law provides two independently sufficient reasons why the plaintiffs must register one they've each been convicted of an indiana registerable offense where a substantially equivalent out of state offense and two they have each been required to register in another state and the indiana constitution allows the state to apply its registry law to the plaintiffs because the indiana supreme court has held that it is not punitive to apply the law to someone another state is already required to register so i thought there are so many things in this case i hope we have enough time to reach them but i want to start with kind of a basic proposition we know from smith against joe that we've got to analyze each state's law on its own you know just because one state may have a compliant laws such as alaska did in that case doesn't tell us anything about the particulars of state's law and i'm a little concerned at the idea that if indiana is not violating any constitutional principle for person number one then it automatically isn't violating any constitutional principle for person number two so in other words if indiana's regime as construed by the indiana supreme court can't be applied to certain indiana people then ok so far so good indiana can do that any what it wants to do it but but i find that uniquely unhelpful in whether what indiana is doing in a different way to other people is or is not constitutional and i'm particularly thinking of the ex post facto argument that the th circuit found persuasive with respect to michigan regime i don't see that many differences between the michigan law other law was ok but let me give you a hypothetical suppose and i know this is not indiana's law but suppose indiana became concerned enough about former people with a in the description of the former sex offen that it decided to amend its sora to say that every person with that kind of record must report to the local jail on friday at five o'clock and stay in the local jail until monday at eight o'clock in the morning well that's not in the alaska law right and we would need to see that and that would certainly appear to me to be a punitive measure right so do we need to look at the specifics and perhaps vasquez and leach did not do so i think  there are two things on that your honor so with respect to the retroactivity question i don't think there's any reason that the specifics of the law will make a difference for the other one you can see that this is retroactive that applies to people who committed their offenses that it all or is your argument that the supreme court and smith justice that it was retroactive and really focused on the putative nature that's exactly right because in one sentence it says that punitive even though retroactive but indiana's law is different does that matter for the retroactivity analysis and why not if it doesn't it's hard to see how it would matter for the retroactivity analysis  crucial point that the court and vasquez identified was that any punishment going forward is simply due to the failure to register but not the only applies prospectively you know that's the truth that's the case with all of the statute i'm sorry judge over has a question indiana supreme court's interpretation of the state's expo's facto laws the state would be prohibited as a matter of state constitutional law from applying its registry law to such a pla because the clear implication of the indiana supreme court's decision in serbia is if someone has never been required to register before such as wallace then the state cannot apply its laws which are actively to such an idiot so that's th clear implication of the indiana supreme court's decisions and wallace tyson serving him and so such an individual would not be required to register is that the way indiana enforces it because it almost seems based on the record here in the suggestions here and i know below the state didn't really contest anything in the record that they apply it even though it's only it only falls into the st prong that it is substantially equivalent it's a priest or a priest two thousand and six offense somebody lives outside of indiana and then moves in even though they're not required to register in the state that where they moved they may still be required because of that st prong substantial  been though you're saying it shouldn't be so your honor put a couple things there one of the states not aware of any situation where this is come up concretely and to with respect to the record the distinguishing between the state statutory issues and the state constitutional issues has always been confused here and the statements that the state official made in the deposition were strictly with respect to the statutory issues and that and that's true as a matter of statutory law someone who has never been required to register but has a substantially one offense would be required to register as a matter of the statute and then up to that's mr snyder right that's that's right as a matter of the statute however as a matter and you're requiring mr snyder to register but mr snyder would be required to read he does not receive the benefit of the wallace rule because he was required to register in michigan and would still be required to register in  i can just append a little note there to preempt a question that your office may have about snyder the th circuit case it's important to note that snyder did not say that michigan's sex offender registry law was could not be applied retroactively period it's the registry law is still applied retroactively in michigan and the other states in the six circuit it simply said that two parts of the registry law could not be applied retroactively one of the restrictions on residency and then to the requirement that the information be updated immediately those those were two provisions of the law that were issue in that case and the court made very clear that those were the only two provisions i believe this is now you find so clear and then i look at  e michigan case right now the but but what i am very concerned about here is that i want to go back and disentangle which we again probably conflated the impact of these registration of a particular registration regime on the person based on his or her prior offen and the fact that you have to register so let me give you another hypothetical that's kind of again extreme suppose in the interest of advancing good parenthood a local school district decides that anybody who fails to show up for a parent teacher conference has to register with the local police because they're obviously not taking enough interest in their child's education well maybe we would think that was an ok registration requirement maybe we wouldn't but it wouldn't be punishment for some underlying offense it's just you didn't show up for the parent teacher conference and i think unlike what happened in legion vasquez these registration requirements do not float around unconnected to anything the whole question the supreme court said we're supposed to attend to smith is whether these sora like regimes inflict additional punishment on somebody for the underlying offense that put them on the registry i don't even want to say sex offense because in some instances as in one of the instances in the th circuit case it wasn't even a sex offense but anyways the defined offenses and i really think that's what we so st of all indiana sex offender registry law operates operates in exactly the same way as the illinois law and the federal sex offender registry law the british are legion vasquez so it operates the same way there are different details which i'll get into  moment but it operates the same way as well just to save your time i agree with you completely the difference between five hundred feet in a one thousand feet is certainly nothing of constitutional magnitude so i'm not worried about that so the other differences that the district court identified a handful  thought that those sorts of labels were shame but i want you to compare i don't i mean you're here for the indiana law never mind the illinois law i want you to compare the indiana law to the law that alaska had that the supreme court was reviewing and smith here i see big differences since in indiana as is the case in many states now you know people can live places people can you know participate in their children's lives people can work places people can take public transportation through certain neighborhoods these are restrictions and they look a lot to me like the restrictions on somebody who's under supervised release or probation or parole there are a couple things i'd like to say about restriction provisions are not actually part of the registry system there separately codified in the states criminal code and are not enforced by the department correction there in force by local county sheriff's offices and boy that's cold out that the rule doesn't implicate the privileges or immunities clause at all and it's hard to see how would the privileges or immunities clause as the plaintiffs concede it merely prohibit states from imposing durational residency requirements that is discriminating between a new residence and old residence and don't understand your argument here is that the rule was that to discriminate between current residents and those moving into the state but i think you'd have to agree that the effect is that they're treated differently how does that impact the analysis well i think it's crucial to see your honor that we can't evaluate  of the privileges or immunities clause by merely looking at how it affects one individual because there's no question that if the state applied the sex offender registry to everyone if wallace didn't exist it wouldn't violate privilege so the crucial question is whether the rule  distinguishes between new residents and old ones and it doesn't and there are two easy ways to see how this is the case so st the state the ruling in a supreme court has articulated would it allow the state to apply its registry law to a longtime hoosier someone who is always resided in the state but whose out of state travel triggers for example illinois registration requirement state it would allow the state to apply its resident it's a registry registry lot of someone like that and it would not allow the state to apply its registry law to someone who just got to indiana from alaska and who was never required to register so crucially the rule doesn't determine the still your concession that somehow mr snyder is apart from some michigan that that the substantial equivalent c is not enough by itself to require registration so i want to clarify your honor as a matter of the statute the substantial quincey is enough but then we always have to ask does the state ex post facto clause nevertheless prohibit the state from applying a registry law to you and if you are an offender who has never been required to register someone like wallace for example then the indiana supreme court says we can apply the registry law to your and the crucial point for mr snyder is he was required to register in michigan and therefore as a matter of state constitutional law the state can apply its registry want to him but it certainly level i'm sorry go that i want to go back to the level of scrutiny if i could please if the rational basis scrutiny applies as you have advocated for say we're looking at the equal protection and rational basis implies you have argued that because the state has a rational basis for imposing this namely the safety of its citizens that that's the end of the inquiry but there's case law out there including f c c vs beach communications that says we're dealing with classifications there has to be a rational basis for the classification self as opposed to the rule as a whole how do you address that and what would the rational basis for a classification here be so two things your honor it's the supreme court in addition to saying that you have to have a rational basis for the classification also says a state can prohibit something and it doesn't have to go all the way and under inclusive law that it doesn't violate rational basis that justify irrational classifications the kick the state can't say well we're going to start with the african americans and then move on with life well that's sort of classification would implicate strict scrutiny of course but i'm just saying it shows that you can't use that kind of a one step at a time approach well that's right classification has to be valid and right that's right your honor and sometimes the state has to draw a line somewhere and here are the reason that the classification is not a rational is the indiana supreme court has concluded that it's going to interpret its state ex post facto clause a little bit more broadly than th subjected to them to want only one then to be left to move and indiana when it wouldn't be imposed in the same conduct on other indiana citizens seems to and i am really having a lot of difficulty you know with with the argument well your honor i think if it's crucial that if that were the rule then it very arguably would violate the privileges or immunities clause but that is not the rule whether or not someone is a an offender is able to take advantage of that wallace rule doesn't turn on whether they have recently moved to indiana it doesn't turn on that it turns whether they've been previously required to register in another state and they may be they may have always lived in indiana for their entire life and still be required to register because they work in illinois and illinois requires on the register or on the other hand they may have recently moved from alaska and alaska didn't require them to register and they would be required to register and that shows that the rule doesn't turn on how recently you moved to indiana how long you've been a resident and that's in the pla f's agree that all the privileges or immunities clause prohibits kid i fall back to the classification question just so you can finish your answer if you would please on it under a rational basis review how does the classification wallace who's never been required to register the indiana supreme court says yeah that's punitive but for someone like the plaintiffs in this case who have been previously were part of register that doesn't quite add up to being punitive and so that's that's the difference some been required to register before it doesn't quite add up to punitive no supporting to the indiana supreme court but for someone who has never been required to register it does and that's a commonsense distinction that the ne us supreme court has drawn and it clearly passes the  minimal requirements of the rational basis so it sounds like you're saying that the classification but not the residents versus not residents it's you have to look at it from a classification of did you have to register previously versus natural absolutely ok thank you right thank you statue went into effect as we argued in our brief if if that were indiana's justification gary snyder would have no registration requirement whatsoever out and bash also to indiana before  what about the fact that mr snyder was required to register under michigan and i believe mr bash was required to register under both kentucky and ohio i think it was where he moved before moving to indiana and  nd prong of the statute and which the state says is absolute absolutely not the state says that we only apply that statute if you came here after a specific date if you came here after july st two thousand and six which i think is a concession that has to make given  so as i say i think the state has started off on foot today that it is not how this case was litigated at the same time i'm not entirely sure that it is a distinction that  that so are you saying that you think there are such material differences between the illinois regime and the indiana regime that would come to a different result i think that illinois that this court in baskets dealt with the residen what smith recognizes is is that one aspect is not necessarily the entire story the we know from smith that a simple registration and notification scheme is constitutional that and  also both specifically held that they were not retroactive so would we have to over all those decisions in order to find the indiana statute retroactive i think that the  think it was assumed by everyone including the justices they were fortunes and smith and not one of them hints at the fact that might not even be retroactive but more importantly it tells us what we all know which is when we say th and none of our six plaintiffs have to the extent that someone has the other jurisdiction requirement applied to them based on working or ted or attending school out of state rather than changing residences i don't think it would implicate the rd component of the right to travel to the state or a court would have to determine whether another component of the right to travel is implicated in that case there's also a a very fair equal protection argue i i can't imagine a justification for in the end of our someone to register who works in cape cook county but not someone to register who works in lake county so it's i think there are definitely constitutional issues that might arise there they're not the same students that are in this case because the rd component the right to travel really does take effect when you start treating new residents differently than all the residents so let me ask you this is it possible in your view that maybe some people just don't have a right to travel complaints such as the type of person judge over just referred to someone who lives in indiana and works in cook county illinois and they've always done that does that take away the right to travel argument for the people who moved from another state i don't think so judge there are three different things that might require registration one is where you live one is where you as the californians because their prior states had such provisions so it wasn't one hundred percent of the class it's just that at that it would be enough that it's some people that that is science but that absolutely your honor and it's easy to view these complex constitutions in the abstract the brian hope if he had never left india after his conviction would not be state saying that this is not something that the right to travel if the state were simply able to say we're relying on the other jurisdiction requirement you're out of state registration that's why we require you to register i don't think there's a practical  every state in the nation now has a sex offender registration so saying that we're simply applying that's that standard i don't think that says anything about whether you have been treated differently than longtime  that there must be a two racial requirement how should it and the law is not necessarily consistent on what that means how should that be construed and is it your argument that  requirement doesn't mean you know you you have to spend a certain amount of time that you could be a new resident or is your argument that the new resident would fall into racial even if we define it how have some courts have traditionally requirement but those for all prior to science weren't that's true but this is a directional residency case the difference between this case and science and and the other durational residency cases is that indiana never discussed retroactivity some degree but i'd like to discuss whether taken as a whole the indiana sora amounts to punishment because there's a lot of discussion about that in justice kennedy smith between the burdens of these registration procedures and the normal burdens that go along with supervised release or karole or that sort of status and the court was not persuaded in smith category or similar to our are two different questions that given that what we're talking about is more or less about i think the closer we get the heavier tilts and in one direction certainly smith was not dealing  particular notifications if you want to leave and not not that i'm aware of i will admit that i am not aware but when you add to all of these together you end up with with a case that again i i will give that  i think it's a crucial to see in this case the distinction between the statutory requirements under any and a lot in the constitution why the three of the thirty six witness that my friend mentioned all of his discussion were about the statutory requirements and everything he said there were entirely accurate but the constitutional question is separate and it's our understanding that the plaintiffs privileges or immunities clause claim it's about the constitutional rule  does not discriminate on the basis of residency and that was a position we took below that's the position we've taken in this court and the only the parties only dispute i think on the privileges or immunities clause issue is exactly what is the rule the indiana supreme court has articulated and ok you're going to have to wrap up yes thank you roger all right thank you very much thanks to both counsel we will take this case one hundred