Case 1:06-cv-00865-RLY-WTL Document 60 Filed 10/05/2006 Page 1 of 23

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOHN DOES I-IV, et al., Plaintiffs,
vs.
CITY OF INDIANAPOLIS, et al., Defendants.

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1:06-cv-865-RLY-WTL

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FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Having read and reviewed the parties’ submissions, and having heard the parties’
oral argument on August 10, 2006, the court now issues its findings of fact and
conclusions of law pursuant to Federal Rule of Civil Procedure 52(a):
I. FINDINGS OF FACT
A. The Indianapolis Ordinance
1. Section 631-106(a) of the Revised Code of the Consolidated City and County
(“Ordinance” or “Section 631-106(a)”) has been amended to provide that:
It shall be unlawful for any person deemed to be an offender against children and required to register under IC 5-2-12 or who have been found by a court to be a sexually violent predator, under IC 35-38-1-7.5, or the law of any jurisdiction that identifies the person as being likely to repeatedly commit a sex offense, or has been convicted of one (1) or more of the following offenses:
(a) Child molesting, under IC 35-42-4-3; (b) Child exploitation (IC 35-42-4-4(b)); (c) Child solicitation (IC 35-42-4-6);
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(d) Child seduction (IC 35-42-4-7); (e) Kidnapping (IC 35-42-3-2), if the victim is less than eighteen (18) years of
age; (f) An offense in another jurisdiction that is substantially similar to an offense
described in clauses (a) through (e);
to be within one thousand feet (1000’) of a public playground, recreation center, bathing beach, swimming or wading pool, sports field or facility, when children are present unless such person or persons are accompanied by an adult person who is not also required to register under Ind. Code 5-212.
(Judicial notice of the Ordinance).
2. Section 631-106(b) of the Ordinance has been amended to provide that:
It shall be unlawful for any person required to register under Ind. Code 5-212 to bring or accompany any other person required to register under Ind. Code 5-2-12 to a public playground, park, recreation center, bathing beach, swimming or wading poll (sic), sports field or facility, when children are present or are expected to be present at such facility or venue.
(Judicial notice of the Ordinance).
3. Section 631-106(e) of the Ordinance provides that one who violates it is guilty of
an infraction that is punishable by progressive fines: $600 for the first violation,
$1,000 for the second, and $2,500 for subsequent violations within the same year.
(Judicial notice of the Ordinance).
4. The articulated purpose for the amended ordinance, as contained in the
introduction to the Ordinance provided by the City-County Council of the City of
Indianapolis and of Marion County, Indiana, is to protect the health and safety of
the community, particularly children. (Judicial notice of the Ordinance).
5. Defendants have specified that the meaning of the following terms in the
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Ordinance are questions of law: - public playground - recreation beach - bathing beach - swimming pool - wading pool - sports field - sports facility - when children are present - when children are expected to be present Defendants have provided no further definition of these terms than what is provided in the Ordinance itself. (Deposition of Donald A. Colvin, Jr. (“Colvin Dep.”), Ex. 2, ¶ 3). 6. Defendants have also specified that the meaning of the following phrase in Section 631-106(a) of the amended Ordinance “unless such person or persons are accompanied by an adult person who is not also required to register . . .” is a question of law. Defendants have provided no further definition. (Colvin Dep. Ex. 2, ¶ 4). B. Properties Included Within the Ordinance and Its Ramifications 7. At the current time, the Indianapolis Department of Parks and Recreation (“Department”) owns and/or operates 189 properties throughout Marion County. (Colvin Dep. at 8-12, 31, Ex. 4). 8. Within the Department’s system, there are 133 playgrounds, 25 recreation centers, 1 bathing beach, 22 swimming pools, 13 golf courses, 121 tennis courts, 58 baseball diamonds, and 71 soccer fields. (Id.).
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9. The Department has generated a map that demonstrates a 1000 foot radius from the various amenities present within its properties, including playgrounds, recreation centers, bathing beach, swimming pools, and sports fields or courts, and golf courses. (Colvin Dep. Ex. 15).
10. Youth programs for persons, including those under 18, are maintained at several of the Department’s golf courses. (Colvin Dep. at 23-24).
11. There are at least 152 public schools in Marion County which contain or have access to playgrounds and/or playing (football, soccer, baseball) fields, and/or tennis courts, or are contiguous to Department property containing these items and are within 1,000 feet of public roads or highways. (Affidavit of Christopher Borm and Matthew O’Connor (“Borm/O’Connor Aff.”); Affidavit of Joshua Rosenbaum and Destiny Wenning (“Rosenbaum/Wenning Aff.”); Affidavit of Erika Eliason and Emily Woolard (“Eliason/Woolard Aff.”).
12. In addition, there are at least nine non-public schools in Marion County that contain basketball courts, soccer fields, tennis courts, and/or football fields within 1000 feet of public roads or highways. (Borm/O’Connor Aff.; Rosenbaum/Wenning Aff.; Eliason/Woolard Aff.).
13. Thus, including the Department’s properties and the schools noted above, there are at least 330 separate points within Indianapolis that can be identified as public playgrounds, recreation centers, bathing beaches, swimming pools, or sports fields or sports facilities. (See Findings of Fact ## 8, 11, 12). This figure does not 4

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include the 13 golf courses, 121 tennis courts, 58 baseball diamonds, and 71 soccer fields that are spread over various Department properties. (See Finding of Fact # 8). 14. The court takes judicial notice of the fact that there are other areas within the City of Indianapolis that can properly be characterized as recreation centers, bathing beaches, swimming pools, sports fields or sports facilities, such as the RCA Dome, Conseco Arena, athletic areas at Butler University, Marian College, and University of Indianapolis, and IUPUI, and swimming pools owned by private persons or private organizations or companies. 15. There are few, if any, areas in the City of Indianapolis that can be traveled through or into that will not result in the traveler passing within 1000 feet of public playgrounds, recreation centers, bathing beaches, swimming pools, or sports fields or sports facilities. (See Map, Hearing1 Ex. 15). 16. For example, it is impossible to travel on Interstate 70, either East or West, Interstate 65, either North or South, or on the entire length of Interstate 465 without passing within 1000 feet of public playgrounds, recreation centers, bathing beaches, swimming pools, or sports fields or sports facilities. (Colvin Dep. Ex. 15). 17. It is impossible to travel on the main local streets, Washington Street (either East
1 The Map was introduced by Plaintiffs during the August 10, 2006 oral argument on Plaintiffs’ Motion for a Preliminary Injunction.
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or West Washington) or Meridian Street (either North or South) without passing within 1000 feet of public playgrounds, recreation centers, bathing beaches, swimming pools, sports fields or sports facilities. (Id.). 18. There were 503 separate polling places in Marion County for the 2006 primary election and 128 of these were in public schools, including 108 public schools that had public playgrounds, recreation centers, bathing beaches, swimming pools, or sports fields or sports facilities. (First Stipulation of the Parties, Attachment 1 to Plaintiffs’ Memorandum in Support of Motion for Preliminary Injunction, compared with Borm/O’Connor Aff.; Rosenbaum/Wenning Aff.; Eliason/Woolard Aff.). C. The Effect of the Ordinance on Plaintiffs
1. John Doe I 19. John Doe I is a resident of Marion County who was convicted of the offense of
child exploitation which is one of the offenses specifically noted in Section 631106(a). (Affidavit of John Doe I). 20. He is no longer on probation and has completed counseling. (Id. ¶¶ 4-5). 21. He has joint custody of his seven year old son. (Id. ¶¶ 6-7). 22. John Doe I takes his son to parks, pools, and recreation areas in Indianapolis, including playgrounds and pools operated by the Indianapolis Parks and Recreation Department. (Id. ¶¶ 8-9). 23. The Ordinance prohibits John Doe I and his son from going to these areas unless
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they are accompanied by someone who is not on the sex offender registry. (Id. ¶¶ 10-11). 24. John Doe I does not know another adult who is able to accompany him and his son to the areas specified in the Ordinance. (Id. ¶ 11). 25. John Doe I does not understand the phrase “accompanied by an adult” as used in the Ordinance. He also does not understand how close to him this phrase requires the other adult to be. (Id.). 26. John Doe I is employed in an office that is across the street from, and within 1000 feet of, a playground in a park operated by the City of Indianapolis. As a result, he violates the Ordinance each time he is at work. (Id. ¶ 12). 27. John Doe I and his son regularly drive through the interstates that pass through Indianapolis and, in doing so, they pass within 1000 feet of areas prohibited by the Ordinance. (Id. ¶ 13). 28. John Doe I is also attending IUPUI and is working on a bachelor’s degree. However, he cannot travel to IUPUI’s main campus, where his classes are, without passing within 1000 feet of areas that he believes are public playgrounds, recreation centers, swimming pools, sports fields or facilities. (Id. ¶ 14). 29. John Doe I is unable to travel through Indianapolis without passing within 1000 feet of public playgrounds, recreation centers, bathing beaches, swimming or wading pools, and/or sports fields or sports facilities. (Id. ¶ 16). 30. Even when John Doe I is consciously seeking to avoid the areas specified in the
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Ordinance, he believes that he may, without knowing it, pass within 1000 feet of the areas. (Id. ¶ 17). 31. John Doe I is aware that the prohibitions in the Ordinance only apply “when children are present.” Because he is unable to determine when children are going to be present, or when they may arrive if not present, he reasonably deems the Ordinance to be an absolute ban on going within 1000 feet of the prohibited place. (Id. ¶ 15).
2. John Doe II 32. John Doe II lives in Indianapolis and was convicted of child molesting and is
therefore subject to the challenged Ordinance. (Affidavit of John Doe II ¶¶ 2-3). 33. He is no longer on probation. (Id. ¶ 4). 34. John Doe II is a truck driver and regularly drives on Interstate 65 through
Indianapolis on a route that takes him within 1000 feet of public playgrounds, recreation centers, bathing beaches, swimming or wading pools, sports fields and/or facilities. (Id. ¶ 5). 35. He is unable to travel through Indianapolis and perform his job without entering the 1000 foot area around the locations noted in Section 631-106(a) of the Ordinance. (Id. ¶ 6). 36. He does not believe that he can travel to the places he must go to in the course of his everyday life in the City of Indianapolis without passing within 1000 feet of public playgrounds, recreation centers, bathing beaches, swimming or wading
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pools, and/or sports fields or sports facilities. (Id. ¶ 11). 37. He would like to be able to enter the locations noted in the Ordinance to engage in
innocent activities. (Id. ¶ 8). 38. John Doe II also does not understand the meaning of “accompanied by an adult” as
used in the Ordinance. He does not understand if this means that he must stay within a certain distance of the accompanying adult and, if so, what that distance is. (Id. ¶ 9). 39. Even when John Doe II is consciously looking to avoid the areas specified in the Ordinance, he believes that he may, without knowing it, pass within 1000 feet of the areas specified in the Ordinance. (Id. ¶ 12). 40. John Doe II would like to vote in the next election. However, his polling place is within an elementary school that contains playgrounds and a playing field at a close distance to the school. (Id. ¶¶ 13-15). 41. John Doe II is aware that the prohibitions in the ordinance only apply “when children are present.” However, given that John Doe II has no idea when children are going to be present, or when they may arrive if not present, he reasonably deems the Ordinance to be an absolute ban on going within 1000 feet of the prohibited places. (Id. ¶ 10). 42. The Ordinance therefore prevents John Doe II from voting in person. (Id. ¶ 15). 43. John Doe II does not believe that he is eligible to vote via absentee ballot by mail because:
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a. he does not have a specific, reasonable expectation of being absent from the county for the entire 12 hours the polls are open election day;
b. he will not be absent from his precinct on election day because of service as a precinct election officer, a watcher a challenger or pollbook holder, or employment by an election board to administer the election;
c. he does not foresee that he will be confined on election day to his residence, a health care facility, or a hospital because of an illness or injury;
d. he is not elderly and he is not disabled; e. he will not be prevented from voting due to caring for an individual
confined to a private residence because of illness or injury during the entire twelve (12) hours that the polls will be open; f. he will not be scheduled to work at his regular place of employment during the entire twelve (12) hours that the polls will be open on election day; g. he is not eligible to vote under Indiana Code § 3-10-11 or Indiana Code § 310-12; h. he will not be prevented from voting due to observance of a religious discipline or religious holiday during the entire twelve (12) hours that the polls will be open on election day; i. he is not an address confidentiality program participant as defined in Indiana Code § 5-26.5-1-6. (Id. ¶ 16).
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3. John Doe III 44. John Doe III also lives in Indianapolis and was convicted of child molesting. He
therefore falls within the scope of Section 631-106(a). (Affidavit of John Doe III ¶¶ 2-3). 45. After being charged with his offense, he began a multi-year course of counseling that he completed. (Id. ¶ 4). 46. John Doe III has no interest in entering the areas specified in Section 631-106(a) for any immoral or unlawful purpose, but would like to retain the right that all others have to enter these areas for innocent purposes. (Id. ¶ 6). 47. He understands he can enter these areas if he is “accompanied by an adult” nonoffender. However, he has no idea what this term means. (Id. ¶ 7). 48. John Doe III understands that the prohibition in Section 631-106(a) applies to the specified areas “only when children are present.” However, he has no way of knowing when children will be present, or arrive at, the proscribed areas. Given this, he reasonably views the Ordinance as an absolute ban on his right to go within 1000 feet of the specified areas. (Id. ¶ 8). 49. When John Doe III goes back and forth to work by car, he drives within 1000 feet of areas specified in Section 631-106(a). (Id. ¶ 8). 50. He is unable to travel in and around Indianapolis in the course of his everyday life without passing within 1000 feet of playgrounds that the public has access to, recreation centers, bathing beaches, swimming or wading pools, and/or sports
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fields or sports facilities. (Id. ¶ 10). 51. And, even if John Doe III consciously attempts to avoid the areas specified in the
Ordinance, he may, without his knowledge, unintentionally pass within the 1000 foot barrier. (Id. ¶ 11).
4. John Doe IV 52. John Doe IV is a resident of Indianapolis, Indiana, who was convicted of rape in
another state. He has been classified as a sexually violent predator and is therefore subject to Section 631-106(a). (Affidavit of John Doe IV ¶¶ 2-4). 53. John Doe IV lives with his wife and nine year old son. (Id. ¶ 2). 54. In order to leave and return to the subdivision where he and his family reside, he must either pass a public school and its recreation areas or a baseball field. (Id. ¶ 5). 55. John Doe IV understands that the prohibitions in Section 631-106(a) only apply “when children are present.” However, given that he has no idea when children are present in, or will be present at, these areas, he views the Ordinance as an absolute ban on traveling within 1000 feet of these areas. (Id. ¶ 10). 56. He also understands that the Ordinance provides that he can enter the specified areas if “accompanied by an adult.” However, he has no idea what that phrase means. (Id. ¶ 9). 57. John Doe IV is required to travel for his employment and in doing so he must use the roads and interstates within Marion County that pass within 1000 feet of the
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areas specified in Section 631-106(a). (Id. ¶ 7). 58. John Doe IV does not believe that he is able to travel to the places he must go in
the course of his every day life in Indianapolis without passing within 1000 feet of playgrounds to which the public has access, recreation centers, bathing beaches, swimming or wading pools, and/or sports fields or sport facilities. (Id. ¶ 11). 59. Even if he is consciously looking to avoid the areas specified by Section 631106(a), John Doe IV believes that he may, without knowing it, unintentionally pass within 1000 feet of the areas prohibited by Section 631-106(a). (Id. ¶ 12). II. CONCLUSIONS OF LAW 1. To the extent any of the foregoing findings of fact is a conclusion of law, it is hereby adopted as a conclusion of law. To the extent any of the conclusions of law set forth below is a finding of fact, it is hereby adopted as a finding of fact. 2. In order to obtain a preliminary injunction, Plaintiffs must establish that: (1) they have a reasonable likelihood of success on the merits; (2) they have no adequate remedy at law; (3) they will suffer irreparable harm without the issuance of the preliminary injunction; (4) the irreparable harm outweighs any harm that will be suffered by Defendants if the injunction is granted; and (5) the injunction will not harm the public interest. Baja Contractor, Inc. v. City of Chicago, 830 F.2d 667, 675 (7th Cir. 1987), cert. denied, 485 U.S. 993 (1988). 3. On its face, the Ordinance applies to three classes of persons:
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(1) those found to be offenders against children and required to register under Indiana Code § 5-2-12; (2) those found to be a sexually violent predator under Indiana Code § 3538-1-7.5, or the law of any jurisdiction that identifies the person as likely to commit a sex offense; and (3) those who have been convicted of the specific offenses enumerated in Section 631-106(a). 4. Plaintiffs are all subject to Section 631-106(a) of the Ordinance. A. The Ordinance Is Void for Vagueness 5. “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). 6. The void-for-vagueness doctrine requires that a statute that prescribes a penalty be written “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). 7. “A statute that ‘vests virtually complete discretion in the hands of the police’ fails to provide the minimal guidelines required for due process.” Id. at 358. 8. Although the doctrine is typically applied to statutes, it applies equally to municipal ordinances. Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000) (Court found Indianapolis ordinance which prohibited activities defined as “aggressive panhandling” was not unconstitutionally vague). 9. An otherwise vague statute or ordinance may be rendered sufficiently certain to
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satisfy due process if it contains a mens rea requirement. United States v. Conner, 752 F.2d 566, 574 (11th Cir.), cert. denied, 474 U.S. 821 (1985) (quoting Screws v. United States, 325 U.S. 91, 102 (1945) (“The requirement that the act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects uncertain. But it does relieve the statute of the objection that it punishes without warning an offense of which the accused was unaware.”)). See also (Colautti v. Franklin, 439 U.S. 379, 395 (1979) (“This Court has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea.”). 10. Section 631-106(a) does not contain a mens rea requirement. 11. Moreover, Section 631-106(a) sets up vague standards that are so indefinite that ordinary persons will not be able to understand what conduct is prohibited. It therefore fails to establish minimal guidelines to govern law enforcement. 12. For example, under the Ordinance, Plaintiffs may pass within 1000 feet of the proscribed areas if they are “accompanied by an adult” who is not a sex offender. The term “accompanied” is not defined and inherently vague. Does it mean within visual or audible contact? What if that contact is broken momentarily? In that circumstance, is the person still “accompanied by an adult”? 13. A federal court will not find a statute or ordinance unconstitutional “if a reasonable interpretation by a state court could render it constitutional in some application.” Gresham, 225 F.3d at 908.
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14. Because the court finds the term “accompanied” to be inherently vague, there is no interpretation that can be given to Section 631-106(a) that would render it constitutional.
15. In addition, the Ordinance does not define what a “public” playground is. One could reasonably interpret that term to mean any playground that is open to the public or any playground owned by the government.
16. Moreover, although the Ordinance applies to public playgrounds, the word public does not modify the rest of the areas described in Section 631-106(a): recreation center, bathing beach, swimming or wading pool, sports field or facility. Thus, law enforcement could interpret Section 631-106(a) as applying to private property.
17. Section 631-106(a) is therefore unconstitutionally vague and violates Plaintiffs’ right to due process. B. The Ordinance Violates the Ex Post Facto Clause
18. The ex post facto clause of the United States Constitution, U.S. Const. Art. I, sec. 10, prohibits retroactive punishment that inflicts greater punishment than when the offense was committed. See e.g., Lynce v. Mathis, 519 U.S. 433, 439 (1997).
19. Successive punishment is also prohibited by the double jeopardy clause of the Fifth Amendment to the United States Constitution.
20. In assessing whether a statute or ordinance imposes punishment, the court must first determine whether the legislature intended for the statute or ordinance to be 16

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punitive. If so, the court’s inquiry ends. If, however, the legislature’s intention was to enact a law that is civil and non-punitive, the court must further examine whether the statutory scheme is “‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’” Smith v. Doe, 538 U.S. 84, 92 (2003) (quoting United States v. Ward, 448 U.S. 242, 248-249 (1980)). “Because [the court] ‘ordinarily defer[s] to the legislature’s stated intent,’” id., (quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997)), “‘only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. (quoting Hudson v. United States, 522 U.S. 93, 100 (1997)). 21. Legislation is civil and non-punitive if its primary purpose is to protect the public from sex offenders. Smith, 538 U.S. at 93. 22. Here, the undisputed purpose of Section 631-106(a) is to protect the health and safety of the community, particularly minor children. Hence, the Ordinance is intended to be civil and non-punitive. 23. The court’s inquiry does not end here since, as indicated above, a determination must be made as to whether the ordinance has the purpose or effect of punishment, regardless of the intent of those creating it. 24. Whether a law’s purpose or effect is punitive turns “on its own highly particularized context.” Flemming v. Nestor, 363 U.S. 603, 616 (1960). 25. In Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), the court discussed a
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number of factors to aid the court in determining whether a law constitutes punishment. The factors relevant to the instant case are: whether the statute or ordinance “has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.” Smith, 538 U.S. at 97. 26. “[B]anishment and exile have throughout history been used as punishment.” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 n.23 (1963). See also Smith, 538 U.S. at 98 (“The most serious [criminal] offenders were banished, after which they could neither return to their original community nor, reputation tarnished, be admitted easily into a new one.”). 27. Section 631-106(a) restricts Plaintiffs from traveling within 1000 feet of public playgrounds, recreation centers, swimming and wading pools, sports fields and facilities, and the like, unless they are accompanied by an adult. As a result, Plaintiffs are not able to travel through the City of Indianapolis, John Doe I is not able to attend work, and John Doe II’s ability to vote is severely restricted. Their very rights of physical movement have been restricted to such an extent that they are effectively banished from the City of Indianapolis. This constitutes historical punishment. 28. The traditional aims of punishment are retribution and deterrance. Kennedy, 372 U.S. at 168.
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29. The City of Indianapolis has specified that the purpose of the challenged Ordinance is to deter criminal behavior directed toward children. It therefore promotes the traditional aims of punishment.
30. Whether the Ordinance subjects Plaintiffs to an affirmative disability or restraint is dependent upon “how the effects of the [Ordinance] are felt by those subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive.” Smith, 538 U.S. at 99.
31. For the reasons stated in Finding of Fact # 27, the Ordinance imposes an affirmative disability or restraint.
32. Finally, the purpose of the Ordinance is to protect persons, particularly children, in the areas specified in the Ordinance. The Ordinance is not rationally connected to this purpose because it applies to persons who are merely traveling near the prohibited areas and have no interest in going in or near these areas. It is therefore excessive.
33. The Ordinance therefore imposes punishment and violates both the double jeopardy and ex post facto clauses of the United States Constitution. C. Right to Vote
34. The Ordinance prevents John Doe II from voting in-person because his polling place is within a school and is within 1000 feet of playgrounds and a playing field.
35. He has no way of knowing if children will be present when he votes. 36. John Doe II is not able to vote while being “accompanied by an adult” as required
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by the Ordinance. Thus, John Doe II is precluded from voting in-person. 37. John Doe II may not vote by mail-in absentee ballot because he does not meet the
requirements of Indiana Code § 3-11-10-24. 38. It is possible that John Doe II could vote before an absentee board in the City
County Building in Indianapolis prior to election day as provided by Indiana Code § 3-11-10-26, provided that he could find a way to downtown Indianapolis without passing within 1000 feet of the areas prohibited by the Ordinance. 39. This is not an adequate substitute for voting in-person on election day. See, e.g., Common Cause/Georgia v. Billups, 406 F.Supp.2d 1326, 1364-65 (N.D. Ga. 2005) (“[A]bsentee voting simply is not a realistic alternative to voting in person that is reasonably available for most voters who lack Photo ID. The fact that voters, in theory, may have the alternative of voting an absentee ballot without a Photo ID thus does not relieve the burden on the right to vote caused by the Photo ID requirement.”). 40. Any severe burden on the right to vote requires a showing that the restriction is narrowly drawn to advance a compelling government interest. Burdick v. Takushi, 504 U.S. 428, 434 (1992). 41. The Ordinance imposes a severe burden on the right to vote and is not narrowly tailored. Preventing persons from voting in-person is not narrowly tailored to advance the City of Indianapolis’ interest in protecting persons, particularly children, in the areas identified by the Ordinance.
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42. The Ordinance is therefore unconstitutional as violating John Doe II’s right to vote. D. Severability of the 1000 Feet Requirement
43. The remainder of a statute or ordinance that contains a portion that is unconstitutional “cannot be deemed separable unless it appears both that, standing alone, legal effect can be given to it, and that the legislature intended the provision to stand, in case others included in the act and held bad should fall.” State v. Barker, 809 N.E.2d 312, 317 (Ind. 2004), cert. denied, – U.S. – , 126 S.Ct. 666 (2005) (quoting Dorchy v. Kansas, 264 U.S. 286, 289-90 (1924)).
44. “The key question is whether the legislature ‘would have passed the statute had it been presented without the invalid features.’” Barker, 809 N.E.2d at 317 (quoting State v. Kuebel, 241 Ind. 268, 278, 172 N.E.2d 45, 50 (1961)).
45. In an effort to save Section 631-106(a), Defendants suggest that the court sever the phrase “within 1000 feet (1000’)” from the Ordinance. However, were the court to do so, the Ordinance would not make sense.
46. Moreover, it is clear from the introduction drafted by the City-County Council that the Council deemed it essential to protect the safety of the public, particularly children, and that those covered by the Ordinance be “prohibited from going within one thousand feet (1000’)” of the areas enumerated in the Ordinance. (Ordinance at 1). Given that this is an essential part of the Ordinance, it cannot be presumed that the Ordinance would have been passed by the City-County Council 21

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if the distance provision was not in the Ordinance. The “within one thousand feet (1000’)” provision is therefore not severable from the remainder of the Ordinance. 47. Even if the provision could be severed, the Ordinance would still be unconstitutional. The phrase “accompanied by” is vague, and the Ordinance effectively bans persons from the specified areas without any showing that they were at risk of harming children in those areas. E. Balance of the Preliminary Injunction Factors 48. There is a strong likelihood that Plaintiffs will prevail on the merits of their constitutional claims. 49. Plaintiffs will suffer irreparable harm if the injunction does not issue as the Ordinance violates their constitutional rights. See, e.g., Cohen v. Cohama County, Miss., 805 F.Supp. 398, 406 (N.D. Miss. 1992) (“It has repeatedly been recognized by the federal courts at all levels that violation of constitutional rights constitutes irreparable harm as a matter of law.”). 50. Plaintiffs have no adequate remedy at law. 51. Defendants will not be harmed by having to conform to constitutional standards and, without an injunction, Plaintiffs will continue to be denied their constitutional rights. The balance of harms therefore favors the issuance of an injunction. 52. The public interest is served by protecting the constitutional rights of its citizenry. 53. Plaintiffs have therefore established all of the requirements for the grant of a preliminary injunction.
22

Case 1:06-cv-00865-RLY-WTL Document 60 Filed 10/05/2006 Page 23 of 23
54. No bond will be required of Plaintiffs as Defendants are not seeking monetary damages. See, e.g., Doctor’s Associates, Inc. v. Stuart, 85 F.3d 975, 985 (2nd Cir. 1996).
III. CONCLUSION For the reasons stated above, Plaintiffs’ Motion for Preliminary Injunction is
GRANTED.
SO ORDERED this 5th day of October 2006.
_______________________________ RRIICCHHAARRDDLL. Y. YOOUUNGN,GJ,UJDUGDEGE UUnniitteeddSStatatetsesDDisitsritcritcCt oCuorturt SSoouutthheerrnnDDisitsrtircitcot foIfnIdniadniaana
Electronic Copies to: Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org Andrew J. Mallon OFFICE OF CORPORATION COUNSEL amallon@indygov.org James B. Osborn OFFICE OF CORPORATION COUNSEL josborn@indygov.org Jacquelyn Bowie Suess ACLU OF INDIANA jsuess@aclu-in.org
23

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOHN DOES I-IV,

)

on their own behalf and on behalf

)

of a class of those similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF INDIANAPOLIS; MARION )

COUNTY SHERIFF,

)

)

Defendants.

)

No. 1:06-cv-0865 RLY-WTL
AMENDED COMPLAINT / CLASS ACTION

Amended Complaint for Declaratory and Injunctive Relief Introduction 1. The City of Indianapolis has amended Sec. 631-106 of the Revised Code of the Consolidated City and County to prohibit certain sex offenders from being within one thousand (1000) feet of certain areas of the County. Violations are punished as infractions. The ordinance is unconstitutional for numerous reasons. Accordingly, an injunction should be entered preventing the ordinance from being effective. Jurisdiction, venue and cause of action 2. This Court has jurisdiction of this case pursuant to 28 U.S.C. ' 1331. 3. Declaratory relief is authorized pursuant to Federal Rules of Civil Procedure Rule 57 and 28 U.S.C. '' 2201 and 2202. 4. Venue is proper in this district pursuant to 28 U.S.C. ' 1391. 5. This action is brought pursuant to 42 U.S.C. ' 1983 to redress the deprivation, under color of state law of rights secured by the laws of the United States.

Parties 6. The City of Indianapolis is a municipal entity that will enforce Sec. 631-106 of the Revised Code of the Consolidated City and County. 7. The Marion County Sheriff supervises police authorities who will enforce Sec. 631-106 of the Revised Code of the Consolidated City and County. 8. John Doe I - IV are adult residents of Marion County, Indiana. Class action allegations 9. Plaintiffs bring this action on their own behalf and on behalf of a class of those similarly situated pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. Additionally, plaintiff John Doe II brings this action on behalf of a sub-class. 10. The class is defined as:
all persons who currently, or will in the future, live in, work in, or visit Marion County, and who are, or will be, persons within the category of sex offenders specified in Section 631-106(a) of Chapter 631 of the Revised Code of the Consolidated City and County 11. The sub-class, represented by John Doe II is defined as: all members of the class who will vote and whose voting places are within 1000 feet of the areas specified in Section 631-106(a) of Chapter 631 of the Revised Code of the Consolidated City and County 12. The requirements of Rule 23(a) are met with respect to the class. Specifically: a. The class is so numerous that joinder of all members is impracticable. Although the exact number of class members is not yet known it is believed to include many hundreds of persons. b. There are questions of law or fact common to the class, specifically whether Section 631-106 of Chapter 631 of the Revised Code of the Consolidated City and County violates rights secured by the United States Constitution. c. The claims of the representative parties are typical of those of the class.
2

d. The representative parties will fairly and adequately represent the interests of the class.
13. The further requirements of Rule 23(b)(2) are met with regard to the class in that at all
times the defendants have acted and have refused to act on grounds generally applicable to the
class, thereby making appropriate final injunctive relief and corresponding declaratory relief with
respect to the class as a whole.
14. The requirements of Rule 23(a) are met with respect to the sub-class. Specifically:
a. The sub-class is so numerous that joinder of all members is impracticable. Although the exact number of class members is not yet known it is believed to include many hundreds of persons. At the current time there are more than 100 polling sites in Marion County that are in elementary, middle, or high schools, all of which are presumably within 1000 feet of public playgrounds or within 1000 feet of sports fields or facilities.
b. There are questions of law or fact common to the class, specifically whether Section 631-106 of Chapter 631 of the Revised Code of the Consolidated City and County violates the right to vote secured by the United States Constitution.
c. The claims of the representative parties are typical of those of the class.
d. The representative parties will fairly and adequately represent the interests of the class.
15. Counsel for plaintiffs are appropriate and adequate attorneys to represent the class and
sub-class and should be so appointed pursuant to Rule 23(g), Federal Rules of Civil Procedure. Legal background as to Indiana law concerning sex offenders
16. Indiana Code § 5-2-12-4 (repealed 7/1/06) and Indiana Code § 11-8-8-5 (eff. 7/1/06) list
various sexual and other offenses against children as well as rape, criminal deviate conduct and
possession of child pornography, if the person has a prior unrelated conviction for possession of
child pornography.
17. Until July 1, 2006, persons convicted of these offenses were required to register pursuant
to standards and requirements specified in Indiana Code § 5-2-12. These have been repealed
3

effective July 1, 2006, and have been replaced by standards and requirements contained in
Indiana Code § 11-8-8.
18. Effective July 1, 2006, Indiana Code § 35-42-4-11 will create a new statutory section that
defines an “offender against children.” There was no such statutory category prior to July 1,
2006.
19. Indiana Code § 35-42-4-11 (eff. 7/1/06) provides that an “offender against children”
means a person required to register as an offender under IC 5-2-12 who has been:
(1) found by a court to be a sexually violent predator under:
(A) IC 35-38-1-7.5; or (B) the law of another jurisdiction that identifies the person as likely to
repeatedly commit a sex offense; or
(2) convicted of one (1) or more of the following offenses:
(A) Child molesting (IC 35-42-4-3). (B) Child exploitation (IC 35-42-4-4(b)). (C) Child solicitation (IC 35-42-4-6). (D) Child seduction (ID 35-42-4-7). (E) Kidnapping (IC 35-42-3-2), if the victim is less than eighteen (18)
years of age. (F) An offense in another jurisdiction that is substantially similar to an
offense described in clauses (A) through (E).
20. Prior to July 1, 2006, Indiana Code § 35-38-1-7.5 (amended 7/1/06) noted that a sexually
violent predator had the meaning set forth in Indiana Code § 5-2-12-4.5 (amended 7/1/06),
which, in turn, stated that a sexually violent predator was an “individual who suffers from a
mental abnormality or personality disorder that makes the individual likely to repeatedly engage
in any of the offenses described in section 4 of this chapter.” Indiana Code § 5-2-12-4.5
(amended 7/1/06).
21. However, effective July 1, 2006, Indiana Code § 5-2-12-4.5 (eff. 7/1/06) states that a
sexually violent predator has the meaning set out in Indiana Code § 35-38-1-7.5 which, as of
4

July 1, 2006, provides that a sexually violent predator is a person who suffers from a mental
abnormality or personality disorder that will make the individual likely to engage in the offenses
specified in Indiana Code § 11-8-8-5. However, the statute also provides that a person will
automatically be found to be a sexually violent predator if: the person commits specific
enumerated sex offenses or if the person commits an offense specified in Indiana Code § 11-8-8-
5 while having a previous unrelated conviction for an offense described in Indiana Code § 11-8-
8-5 for which the person must register as a sex offender pursuant to Indiana Code § 11-8-8. Factual allegations
22. On May 23, 2006, the amended Chapter 361 of the Revised Code of the Consolidated
City and County became effective after being signed by the Mayor of Indianapolis.
23. The amended ordinance is attached.
24. Section 631-106(a) provides that :
It shall be unlawful for any person deemed to be an offender against children and required to register under IC 5-2-12 or who have been found by a court to be a sexually violent predator, under IC 35-38-1-7.5, or the law of any jurisdiction that identifies the person as being likely to repeatedly commit a sex offense, or has been convicted of one (1) or more of the following offenses:
a) Child molesting, under IC 35-42-4-3; b) Child exploitation (IC 35-42-4-4(b)); c) Child solicitation (IC 35-42-4-6); d) Child seduction (IC 35-42-4-7); e) Kidnapping (IC 35-42-3-2), if the victim is less than eighteen (18) years of
age; f) An offense in another jurisdiction that is substantially similar to an offense
described in clauses (a) through (e);
to be within one thousand feet (1000’) of a public playground, recreation center, bathing beach, swimming or wading pool, sports field or facility, when children are present unless such person or persons are accompanied by an adult person who is not also required to register under IC 5-2-12.
5

25. The ordinance does not define what “accompanied by an adult person” means. Specifically, there is no explanation as to how close the accompanying person must remain to the sex offender in order to satisfy the ordinance. Nor is there any explanation as to whether the person must be known by the sex offender or whether a sex offender may be accompanied by strangers, such as on a bus or at a sporting event. 26. There is no definition in the ordinance as to whether the terms public playground, recreation center, bathing beach, swimming or wading pool, sports field or facility refer to areas that are owned by the City of Indianapolis, owned by another public entity, owned by a private entity but opened to the public, or owned by private entity and not opened to the public. 27. It is virtually impossible to travel through the streets and interstate highways in Marion County without passing within 1000 feet of a playground open to the public, recreation center, bathing beach, swimming or wading pool, sports field or facility. 28. Moreover, there is no way for a person to know if he or she is passing within 1000 feet of a playground open to the public, recreation center, bathing beach, swimming or wading pool, sports field or facility. 29. As written the ordinance penalizes persons who are on public transportation, taxis, airplanes or other vehicles that they do not control that pass within 1000 feet of a playground open to the public, recreation center, bathing beach, swimming or wading pool, sports field or facility 30. Section 631-106(b) of the ordinance provides, in part, that:
It shall be unlawful for any person required to register under IC 5-2-12 to bring or accompany any other person required to register under IC 5-2-12 to a public playground, park, recreation center, bathing beach, swimming or wading poll (sic), sports field or facility, when children are present or are expected to be present at such facility or venue.
6

31. There is no explanation in the ordinance as to how a person required to register may determine whether children “are expected to be present at such facility or venue.” 32. A person who violates the ordinance is guilty of an infraction that is punishable by progressive fines: $600 for the first violation, $1,000 for the second, and $2,500 for subsequent violations within the same year. Section 631-106(e). 33 John Doe I is a resident of Marion County, Indiana. 34. John Doe I was convicted in Indiana of the offense of child exploitation as well as another offense. 35. After a period of incarceration John Doe I was placed on probation although his probation expired in 2004. 36. John Doe I is not a risk to children or other persons. 37. John Doe I received counseling through the Indianapolis Counseling Center and, after a number of hearings, was awarded joint custody of his son who is currently seven (7) years of age. 38. John Doe I and his son frequently go to playgrounds in Indianapolis parks as well as to pools operated by the City of Indianapolis 39. Because of the challenged ordinance, he is now not allowed to travel to these areas with his son. 40. He does not have another adult who can regularly accompany him and his son when they visit the parks and other recreation areas. Moreover, he does not understand what the requirement that he be “accompanied by an adult person” means so that if he has an adult accompany him and his son he does not know how close the adult has to be to him to not be in violation of the ordinance.
7

41. John Doe I is employed. His office is within 1000 feet of a park with a playground operated by the City of Indianapolis. He will therefore violate the ordinance if he goes to work. 42. John Doe I and his son regularly use the interstate highways passing though Indianapolis to go to Cincinnati and Kentucky. However, the interstates pass within 1000 feet of public playgrounds, recreation centers, bathing beaches, swimming or wading pools, sports fields and/or facilities. 43. John Doe I is a student at IUPUI. However, he has not discovered any way that he can travel to the university without passing within 1000 feet of public playgrounds, recreation centers, swimming or wading pools, sports fields and/or facilities. 44. John Doe I is unable to travel through Indianapolis without passing within 1000 feet of public playgrounds, recreation centers, bathing beaches, swimming or wading pools, sports fields and/or facilities. 45. John Doe II is a resident of Marion County who was convicted of child molesting. 46. He served a prison term and his probation has been completed. 47. John Doe II is a truck driver and he regularly drives to Chicago on Interstate 65 through Indianapolis. His route on the interstate takes him within 1000 feet of public playgrounds, recreation centers, bathing beaches, swimming or wading pools, sports fields and/or facilities. 48. He is therefore unable to travel through Indianapolis and do his job without violating the ordinance. 49. He wishes to vote at the next election. However, his precinct is within an elementary school and is within 1000 feet of a playground and sport field. He is not eligible to vote via an absentee mail ballot.
8

50. John Doe III is a resident of Marion County who was convicted of child molesting more than a decade ago. 51. Following his conviction he completed many years of counseling. 52. He is employed and when he goes to and from work he is forced to drive within one thousand feet (1000’) of public playgrounds, recreation centers, sports fields and facilities. 53. He would like to retain the right to enter parks, pools, sport fields and facilities and other similar areas in Indianapolis for the purpose of engaging in innocent activities without being subject to penalty. 54. He is unable to travel through Indianapolis without violating the ordinance 55. John Doe IV is a Marion County resident who lives with his wife and nine year old son. 56. He was convicted of rape of an adult in another state decades ago and has been classified as a sexually violent predator. 57. He is not, as a matter of fact, a sexually violent predator. 58. To get out of the subdivision where he and his family reside he must pass either a public school and its recreation areas or a baseball field. 59. He and his family like to travel to parks and other similar areas in Indianapolis and he wishes to be able to continue to do so without being accompanied by another adult. 60. He does not understand the meaning of the word “accompanied by an adult person” as used in the challenged ordinance. 61. He is required to travel for his employment and in doing so he is required to use roads and interstates in and through Marion County that pass within 1000 feet of the prohibited areas specified in the challenged ordinance. 62. He is therefore unable to travel through Indianapolis without violating the ordinance.
9

63. The challenged ordinance requires persons within its prohibitions to move from their homes or leave their jobs if their homes or jobs are within one thousand (1000) feet of a public playground, recreation center, bathing beach, swimming or wading pool, sports field and/or facility. 64. The challenged ordinance is causing plaintiffs irreparable harm for which there is no adequate remedy at law. 65. At all times defendants have acted under color of state law. Legal claims 66. The challenged ordinance, Section 631-106 of the Revised Code of the Consolidated City and County, is unconstitutionally vague, in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. 67. The challenged ordinance, Section 631-106 of the Revised Code of the Consolidated City and County, violates the right of the plaintiffs and the putative class to intrastate travel in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. 68. The challenged ordinance, Section 631-106 of the Revised Code of the Consolidated City and County, is fundamentally irrational and arbitrary and is therefore unconstitutional as violating the due process clause of the Fourteenth Amendment to the United States Constitution. 69. The challenged ordinance, which has the affect of forcing plaintiffs and the putative class to leave their jobs and renders them unable to move through the City of Indianapolis, amounts to punishment of one already convicted of a crime and is therefore an unconstitutional violation of the ex post facto clause of the United States Constitution, art. I, ' 10, cl. 1 and/or the double jeopardy clause of the fifth amendment to the United States Constitution as incorporated into the
10

Fourteenth Amendment.
70. To the extent that the challenged ordinance, Section 631-106 of the Revised Code of the
Consolidated City or County prevents John Doe II and members of the putative sub-class from
being able to vote it is unconstitutional as violating the First and Fourteenth Amendments to the
United States Constitution.
Requested relief
WHEREFORE, plaintiffs request that this Court:
1. Accept jurisdiction of this case and set it for hearing at the earliest opportunity.
2. Certify this case as a class action with the class and sub-class as described above.
3. Declare that the ordinance, Section 631 of the Revised Code of the Consolidated City and County is unconstitutional and void for the reasons noted above.
4. Enter a preliminary, later to be made permanent, injunction, enjoining the application and enforcement of Section 631of the Revised Code of the Consolidated City and County.
5. Award plaintiffs their costs and reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988.
6. Award all other proper relief.
/s/ Kenneth J. Falk Kenneth J. Falk No. 6777-49 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059 ext. 229 fax: 317/635-4105 e-mail:kfalk@aclu-in.org
/s/ Jacquelyn Bowie Suess Jacquelyn Bowie Suess No. 17241-53-A ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059 ext. 229
11

fax: 317/635-4105 e-mail:jsuess@aclu-in.org Attorneys for Plaintiffs and the putative class Certificate of Service I hereby certify that on this 25th day of July, 2006, a copy of the foregoing was filed electronically with the Clerk of this Court. Notice of this failing will be sent to the following parties by operation of the Court’s electronic filing system and the parties may access this filing through the Court’s system. Andrew J. Mallon Assistant Corporation Counsel amallon@indygov.org James B. Osborn Chief Litigation Counsel Office of the Corporation Counsel josborn@indygov.org /s/ Kenneth J. Falk Kenneth J. Falk
12

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOHN DOES I-IV, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF INDIANAPOLIS, MARION )

COUNTY SHERIFF,

)

)

Defendants.

)

No. 1:06-cv-0865 RLY-WTL

Stipulation to Settle All Issues Following Notice to the Class / Motion to Approve Form of Notice to the Class

Come now the parties, by their counsel, and stipulate and agree as follows: Introduction

1. This is an action for declaratory and injunctive relief brought by plaintiffs to challenge

the constitutionality of Section 631-106(a) of the Revised Code of the Consolidated City and

County.

2. Pursuant to this Court’s Orders of October 5, 2006 and November 20, 2006, ordering a

preliminary injunction in this cause, the defendants are not enforcing the above Ordinance.

3. The defendants do not believe that grounds exist to enter a preliminary injunction in this

cause and they do not concede the merits of any of the allegations of the plaintiffs’ complaint or

amended complaint. However, the parties are desirous of attempting to reach a settlement of this

matter and therefore they enter into this Stipulation which is designed to resolve all issues in this

case.

4. On November 20, 2006, this Court certified this case as a class action pursuant to Rule

23(b)(2) of the Federal Rules of Civil Procedure, with the class defined as:

All persons who currently, or will in the future, live in, work in, or visit Marion County, and who are, or will be, persons within the category of sex offenders specified in Section 631-106(a) of Chapter 631 of the Revised Code of the Consolidated City and County. 5. Although plaintiffs have approved this Stipulation, the parties agree that this Stipulation can not be approved by the Court until notice is given the class as required by Rule 23(e) of the Federal Rules of Civil Procedure and as further specified below. Statement of settlement 6. The parties agree that as a settlement of this action the defendants agree and stipulate that a permanent injunction should be entered as a final judgment in this cause, permanently enjoining enforcement of Section 631-106(a) of the Revised Code of the Consolidated City and County. 7. This permanent injunction should apply to defendants and their agents, officers, employees and those acting in concert with them. Notice to the class 8. Inasmuch as this is a class action, notice must be given to the class pursuant to Rule 23(e) of the Federal Rules of Civil Procedure before this Court can consider whether this Stipulation is a fair and appropriate settlement of this matter. 9. Notice shall be given by publishing the attached notice, Attachment 1, as a legal notice in a newspaper of general circulation in Marion County, once a week for two (2) consecutive weeks. The City of Indianapolis will assume the costs of this publication. 10. Additionally, the notice (Attachment 1), shall be immediately posted in a prominent location in the City-County Building in Indianapolis until at least the time that class counsel files his report as noted in paragraph 11, infra.

11. No earlier than thirty (30) days after the publication is concluded, plaintiffs shall file their report with the Court informing the Court as to any and all comments received. Following this report the parties anticipate that the Court will decide whether to approve this Stipulation and make it the Order of this Court. Attorneys’ fees 12. The parties agree that plaintiffs are prevailing parties and are entitled to reasonable attorneys’ fees and costs of $40,000.
WHEREFORE, the parties file their Stipulation to Settle All Issues with the Exception of Attorneys’ Fees and Costs Following Notice to the Class / Motion to Approve Form of Notice to the Class, and request that this Court.
a. Approve the proposed notice to the class and order that it be given in the manner specified above.
b. Approve this Stipulation and make it the Order and Final Judgment of this Court following notice to the class and following plaintiffs’ report as to that notice.
c. Grant all other proper relief.

/s/Kenneth J. Falk Kenneth J. Falk ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059 ext. 229
Attorney for Plaintiffs

/s/ James Osborn James Osborn Chief Litigation Counsel Office of the Corporation Counsel 200 E. Washington St. – Room 1601 Indianapolis, IN 46204 317/327-4055
Attorney for Defendants

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOHN DOES I-IV, et al., Plaintiffs, v.
CITY OF INDIANAPOLIS, et al., Defendants.

)

)

)

)

)

No. 1:06-CV-0865 RLY-WTL

)

)

)

)

ORDER APPROVING STIPULATION TO SETTLE AND FINAL JUDGMENT

This cause comes before the Court on the parties’ Stipulation to Settle All Issues

Following Notice to the Class. On June 21, 2007, the Court held a fairness hearing to

determine whether the settlement is fair and reasonable. Both parties appeared by

counsel at the hearing.

Having considered the Stipulation, the arguments of counsel at the fairness

hearing, and Court’s prior proceedings and record in this matter,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:

1. The Court has jurisdiction over the subject matter of this cause and over all of the

parties, including the class members.

2. The class has been given proper and adequate notice of the terms of this

settlement. It is not completely certain that the notice was posted in the City County

Building as noted in the Stipulation to Settle. However, published notice was made and

the Court finds that given that the relief in this case is the relief requested in the litigation

– the injunction Section 631-106(a) of the Revised Code of the Consolidated City and

County – and therefore the notice is deemed sufficient and adequate.

3. The notice invited class members to notify class counsel of any objections or comments on the proposed dismissal. The notice provided valid and sufficient notice of these proceedings and the matters set forth herein and including information regarding the procedures for making any objections to the dismissal. 4. The notice fully satisfied the requirements of Federal Rule of Civil Procedure 23 and the requirements of due process. 5. The proposed resolution in this case is fair, reasonable and adequate for the following reasons:
A. The strength of the plaintiffs’ case was strong as evidence by the preliminary injunction granted by this Court. B. The complexity, length and expense of continued litigation weigh in favor of approving the Stipulation. Given the likelihood of plaintiffs’ success on the merits and defendant’s agreement to permanently enjoin the challenged ordinance, further cost and delay in litigating this claim would not be in the best interest of the parties. C. All parties have agreed to the Stipulation, and there is no indication that any member of the putative class has objected to the proposed dismissal. Moreover, there is an overriding public interest in settling and quieting this litigation. D. There is no evidence of any collusion between the parties in agreeing to settlement of this action. In fact, the settlement affords to plaintiffs and the class the precise relief that they asked for in the litigation – the permanent injunction of the challenged ordinance. The Court is
2

satisfied that the Stipulation to Settle is the product of arms-length negotiation. E. The opinion of class counsel that this case should be dismissed weights in favor of dismissing the case. Counsel is experienced in class action litigation and believes that the dismissal is fair. F. The stage of the proceedings weighs in favor of approving the Stipulation to Settle. The case has been ongoing since May of 2006 and has resulted in a preliminary injunction that has enjoined the challenged ordinance. Given that the settlement provides for a permanent injunction further protracted delay in bringing this matter to a close is unwarranted. For the foregoing reasons, the Court approves the Stipulation to Settle All Issues and hereby enters FINAL JUDGMENT approving the Stipulation to Settle and making it the FINAL ORDER of this Court, and therefore: IT IS ADJUDGED AND DECREED that Section 631-106(a) of the Revised Code of the Consolidated City and County is hereby PERMANENTLY ENJOINED, and, IT IS FURTHER ADJUDGED AND DECREED that plaintiffs shall be paid, forthwith, their reasonable attorneys’ fees and costs of $40,000.

_0_6_/2_2_/_2_0_0_7____ Date
cc: Kenneth J. Falk ACLU of Indiana kfalk@aclu-in.org

___________________________________ Judge, United States District Court
_______________________________
RICHARD L. YOUNG, JUDGE United States District Court Southern District of Indiana

3

James Osborn Chief Litigation Counsel Office of the Corporation Counsel josborn@indygov.org
4

 
 Does v. City of Indianapolis, Ind., Not Reported in F.Supp.2d (2006)
2006 WL 2289187 Only the Westlaw citation is currently available.
United States District Court, S.D. Indiana,
Indianapolis Division. JOHN DOES I-IV, on their own behalf and on behalf of a class of those similarly situated, Plaintiffs,
v. CITY OF INDIANAPOLIS, INDIANA; Marion County Sheriff, Defendants.
No. 1:06-cv-865-RLY-WTL. | Aug. 7, 2006.
Attorneys and Law Firms
Jacquelyn Bowie Suess, Kenneth J. Falk, ACLU of Indiana, Indianapolis, IN, for Plaintiffs.
Andrew J. Mallon, James B. Osborn, Office of Corporation Counsel, Indianapolis, IN, for Defendants.
Opinion
ENTRY ON PLAINTIFFS’ AMENDED1 MOTION TO PROCEED BY ANONYMOUS NAMES AND AMENDED MOTION TO SEAL DOCUMENTS CONTAINING ACTUAL NAMES and DEFENDANTS’ MOTION TO DISMISS COMPLAINT AND ALL PENDING MOTIONS
RICHARD L. YOUNG, District Judge.
I. Introduction *1 John Does I-IV, on their own behalf and on behalf of a class of those similarly situated (collectively “Plaintiffs”), are anonymous sex offenders who are challenging a new amendment to a Marion County ordinance which prevents them from going within 1000 feet of certain specified areas, including public playgrounds, pools, sports fields and sport facilities, unless they are accompanied by someone who is not a sex offender. Plaintiffs seek permission from the court to proceed in this action by the anonymous names of John Doe I-IV. Defendants, the City of Indianapolis, Indiana (“the City”), and the Marion County Sheriff (“Sheriff”) (collectively “Defendants”), object and move to dismiss Plaintiffs’ Complaint and all pending motions. The court, having read and reviewed the parties’ motions and the applicable law, now finds Plaintiffs’ amended motion should be GRANTED, and Defendants’ motion should be DENIED.
II. Discussion Defendants argue that Plaintiffs, by proceeding anonymously, have violated Rules 10(a) and 17(a) of the Federal Rules of Civil Procedure, and that therefore, they have failed to state a claim upon which relief can be granted. Rule 10(a) provides that the title of the action in the complaint must “include the names of all the parties ...”. Rule 17 requires that all civil actions be prosecuted in the name of the real party in interest.
These requirements are not a matter of mere administrative convenience for court staff and counsel. They also protect the public’s legitimate interest in knowing which disputes involving which parties are before the federal courts that are supported with tax payments and that exist ultimately to serve the American public.
Doe v. Indiana Black Expo, Inc., 923 F.Supp. 137, 139 (S.D.Ind .1996).
1

Does v. City of Indianapolis, Ind., Not Reported in F.Supp.2d (2006)
Notwithstanding the strong presumption in favor of open proceedings in which all parties are identified, federal district courts have the ability, under the appropriate circumstances, to allow Plaintiffs to proceed by anonymous name. Id. The Seventh Circuit has noted that anonymous name status may be granted where the plaintiff is a minor, rape or torture victim, a closeted homosexual, or “so far as appears-a likely target of retaliation by people who would learn her identity only from a judicial opinion or other court filing.” Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir.2004). These factors are not exclusive. “The presumption that parties’ identities are public information, and the possible prejudice to the opposing party from concealment, can be rebutted by showing that the harm to the plaintiff ... exceeds the likely harm from concealment.” Id.
The Seventh Circuit’s formulation is not unique. Other courts have recognized that “[t]he ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ “ Doe v. Frank, 951 F.2d 320, 323 (11th Cir.1992). In assessing this balance, the six-factor test utilized in EW v. New York Blood Center, 213 F.R.D. 108, 111(E.D.N.Y.2003) is helpful:
*2 (1) whether the plaintiff is challenging governmental activity or an individual’s actions; (2) whether the plaintiff’s action requires disclosure of information of the utmost intimacy; (3) whether the action requires disclosure of the plaintiff’s intention to engage in illegal conduct; (4) whether identification would put the plaintiff at risk of suffering physical or mental injury; (5) whether the defendant would be prejudiced by allowing the plaintiff to proceed anonymously; and (6) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system.
Id. (internal citations omitted). The factors relevant to the court’s analysis are (1), (4), (5), and (6).
Turning now to the first factor, Plaintiffs are challenging actions of the government, the City of Indianapolis, and the newly amended ordinance. As a general proposition,
where a plaintiff attacks governmental activity, for example a governmental policy or statute, the plaintiff’s interest in proceeding anonymously is considered particularly strong. See, e.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. In such circumstances the plaintiff presumably represents a minority interest (and may be subject to stigmatization), and there is arguably a public interest in a vindication of his rights. In addition, the government is viewed as having a less significant interest in protecting its reputation from damaging allegations than the ordinary individual defendant.
Id.
Turning to the fourth factor, Plaintiffs submitted affidavits attesting to their fear of physical harm to them and their children if their actual names are disclosed. See John Doe I Verified Motion ¶¶ 5-6; John Doe IV Verified Motion ¶¶ 11-12. In addition, all of the Plaintiffs are aware of the fact that persons identified as sex offenders have been subject to violence. See Plaintiffs’ Attachment 1, MSNBC.com, Police Investigate Sex Offender Slaying (4/17/06), http://www.msnbc.com/id/12345678; MSNBC.com, Man Turns Self In After 2 Child Molesters Killed (9/6/05), http://msnbc.com/id/9227684; The Boston Globe, Man Defends Attacks on Sex Offenders (12/5/04), http:// www.boston.com/news/local /articles/2004.
Defendants point out that Plaintiffs’ crimes and convictions are matters of public record and their identities can be found on Indiana’s sex offender registry. However, Plaintiffs are not challenging the sex offender registry. Rather, they are challenging the City’s ordinance. Thus, “the real issue is whether [Plaintiffs] reasonably fear[ ] retaliation based upon [their] challenge of [the ordinance].” See Doe v. Tandeske, 2003 WL 24085314 (D.Alaska 2003). Given the amount of media attention devoted to this case thus far, see Plaintiffs’ Attachment 2, as well as the public’s attitude toward sex offenders in general, Plaintiffs’ fears that they and their families could be subject to physical harm as a result of participating in this lawsuit are legitimate.
*3 With regard to the fifth factor, in the event the court grants Plaintiffs’ motion, Plaintiffs fully intend to disclose their identities to both this court and Defendants. Plaintiffs request, understandably, that Defendants be precluded from disclosing their names publicly. Thus, Defendants will not be prejudiced by allowing Plaintiffs to proceed by anonymous names.
Finally, there is not a strong public interest in disclosing Plaintiffs’ actual names. The issues before the court are purely legal in nature, and do not involve contested facts. Doe v. Provident Life and Accident Ins. Co., 176 F.R.D. 464, 468 (E.D.Pa.1997) (“[B]ecause of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in
2

Does v. City of Indianapolis, Ind., Not Reported in F.Supp.2d (2006)
knowing the litigant’s identities.”).
In addition, Plaintiffs brought this action as a class action. They therefore represent not only themselves, but the thousands of sex offenders subject to the ordinance. The public interest is not in being able to identify any one Plaintiff, but in being able to follow the case to determine how the constitutional issues are resolved. As the court noted in Provident Life and Accident Ins. Co., 176 F.R.D. at 468, “Doe’s use of a pseudonym will not interfere with the public’s right or ability to follow the proceedings. Indeed, this court intends to keep the proceeding open to the public while still maintaining the confidentiality of plaintiff’s identity.”

III. Conclusion The court finds that Plaintiffs’ need for anonymity outweighs any prejudice to Defendants and the public’s interest in knowing their identity. Therefore, Plaintiffs’ Amended Motion to Proceed by Anonymous Names and Amended Motion to Seal Documents Containing Actual Names (Docket # 41) is GRANTED, and Defendants’ Motion to Dismiss Complaint and All Pending Motions must be DENIED (Docket # 18).
IT IS THEREFORE ORDERED that Plaintiffs may proceed in this action with the anonymous names of John Doe I, John Doe II, John Doe III, John Doe IV, and,
IT IS FURTHER ORDERED that Plaintiffs’ counsel shall immediately file, under seal, the verified motions of Plaintiffs containing their actual names, and,
IT IS FURTHER ORDERED that the verified motions and all other documents containing Plaintiffs’ actual names are now SEALED and shall not be opened without prior order of this court, and,
IT IS FURTHER ORDERED that Plaintiffs’ counsel shall transmit to Defendants’ counsel copies of the verified motions with Plaintiffs’ actual names and,
IT IS FURTHER ORDERED that Defendants’ shall not publicly disclose Plaintiffs’ actual names and shall disclose Plaintiffs’ names only as is necessary for the defense of this litigation.
SO ORDERED this 7th day of August 2006.

Footnotes

1

On July 25, 2006, Plaintiffs filed their Amended Complaint to remove former plaintiffs John Doe V and John Doe VI as parties to

this cause. On that same date, Plaintiffs filed the instant motion to renew their prior requests to proceed by anonymous names and

to seal affidavits made by John Doe I, John Doe II, John Doe III, and John Doe IV.

3

 
 Does v. City of Indianapolis, Indiana, Not Reported in F.Supp.2d (2006)
2006 WL 3365672 Only the Westlaw citation is currently available.
United States District Court, S.D. Indiana,
Indianapolis Division. John DOES I-IV, on their own behalf and on behalf of a class of those similarly situated, Plaintiffs,
v. CITY OF INDIANAPOLIS, INDIANA; Marion County Sheriff, Defendants.
No. 1:06-cv-865-RLY-WTL. | Nov. 20, 2006.
Attorneys and Law Firms
Jacquelyn Bowie Suess, Kenneth J. Falk, Aclu of Indiana, Indianapolis, IN, for Plaintiffs.
Andrew J. Mallon, James B. Osborn, Office of Corporation Counsel, Indianapolis, IN, for Defendants.
Opinion
ENTRY ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION and AMENDED MOTION FOR CLASS CERTIFICATION
RICHARD L. YOUNG, District Judge.
I. Introduction *1 This action is brought by Marion County residents who have committed sex offenses that currently, or will shortly, bring them within the prohibitions and restrictions imposed in the newly amended Section 631-106 of the Revised Code of the Consolidated City and County, and who allege that the amended ordinance violates both various aspects of the due process clause as well as rights secured by the First Amendment. Plaintiffs are requesting that this case be certified as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. The class is defined as:
All persons who currently, or will in the future, live in, work in, or visit Marion County, and who are, or will be, persons within the category of sex offenders specified in Section 631-106(a) of Chapter 631 of the Revised Code of the Consolidated City and County.
The sub-class,1 represented by John Doe II, is defined as:
All members of the class who will vote and whose voting places are within 1000 feet of the areas specified in Section 631-106(a) of Chapter 631 of the Revised Code of the Consolidated City and County. The court, having read and reviewed the materials submitted by the parties, as well as the applicable law, now finds that certification of the class and sub-class is appropriate.
II. Standard for Class Certification Class action suits are governed by Federal Rule of Civil Procedure 23. A party seeking class certification bears the burden of establishing that certification is appropriate. Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). Rule 23 prescribes a two-step analysis to determine whether class certification is appropriate. First, a plaintiff must satisfy all four requirements of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir.1993). These elements are a prerequisite to certification, and
1

Does v. City of Indianapolis, Indiana, Not Reported in F.Supp.2d (2006)
failure to meet any one of them precludes certification of a class. Retired Chicago Police Ass’n, 7 F.3d at 596. Second, the action must also satisfy one of the conditions of Rule 23(b). Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir.1977). As noted above, Plaintiffs seek certification under Rule 23(b)(2), which requires a showing that the party opposing the class has acted or refused to act on grounds generally applicable to the class.
Class certification is a procedural issue. While the court may not conduct a preliminary inquiry into the merits of the underlying claims, Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177 (1974), the court may look beyond the pleadings to determine whether the requirements of Rule 23 are met. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 677 (7th Cir.2001) (“[N]othing in ... Rule 23, or in the opinion in Eisen, prevents the district court from looking beneath the surface of a complaint to conduct the inquiries identified in that rule and exercise the discretion it confers.”).
III. Discussion *2 Defendants, the City of Indianapolis and the Marion County Sheriff, challenge Plaintiffs’ motion on grounds that: (1) the proposed class is overinclusive; (2) Plaintiffs have not shown that joinder is impracticable; and (3) common questions of fact and law do not predominate.
A. Breadth of the Class A class must not be defined so broadly that it includes persons who have not suffered injury, for “the description must not be so broad as to include individuals who are without standing to maintain the action on their own behalf.” Oshana v. The Coca Cola Co., 225 F.R.D. 575, 580 (N.D.Ill.2005) (internal citation and quotation omitted).
Defendants contend the Plaintiffs’ proposed class is overbroad because it is not applicable to all purported class members. “The new ordinance only affects those putative class members who, for some constitutionally protected purpose, need to go within 1000 feet of the specified children’s facilities while children are present when they are unaccompanied by an exempt adult.” (Defendants’ Response at 5).
Every person convicted of the offenses noted in the ordinance provisions has standing to challenge the constitutionality of the ordinance. All of these persons are prohibited from entering the specified areas, without being accompanied, and whether they want to enter the areas or not, they will have to move through Indianapolis cognizant of the ordinance and will have to take extraordinary steps to insure that they do not come within the 1000 foot barrier. Thus, all persons convicted of the offenses noted in the ordinance are being denied the right to intrastate movement. And the very existence of the challenged provisions represents ex post facto punishment and/or double jeopardy in violation of the Constitution.
The challenged portions of the ordinance will affect all members of the putative class. The class is properly defined and is not overly broad.
B. Numerosity Federal Rule of Civil Procedure 23(a)(1) provides that a class action may be maintained only if “the class is so numerous that joinder of all members is impracticable.”
The parties have stipulated that there are approximately 1,662 persons in Marion County who are required to register as sex offenders pursuant to Indiana law. Plaintiffs offer further evidence that of these 1,662 sex offenders, approximately 58% of these sex offenders have committed offenses that subject them to the ordinance and make them members of the class. This totals more than 963 persons.
In addition, there are an unknown number of persons who will fall into these categories in the future. “[C]lass actions challenging statutes or administrative procedures on constitutional grounds, have been recognized as natural class actions, and inclusion in the class of potentially aggrieved individuals has often been regarded as sufficient to meet the Rule 23(a)(1) impracticability requirement .” 1 Newberg on Class Actions § 3.07, 36-37 (3rd ed).
*3 Defendants do not dispute that, as defined, the class is so numerous that joinder of all members is impracticable. Rather, they argue:
2

Does v. City of Indianapolis, Indiana, Not Reported in F.Supp.2d (2006)
[T]he new ordinance’s restrictions would only affect the sub-group of Marion County offenders who actually [pass within 1000 feet of a public playground, recreation center, bathing beach, swimming or wading pool, sports field or facility]. Plaintiffs have not demonstrated that joining this sub-group of sex offenders is impracticable ...”
(Defendants’ Response at 6). However, as currently defined, all members of the class and sub-class are affected by the challenged ordinance provisions. All of them are denied entry into the proscribed areas, unless they are accompanied by an adult. The term “accompanied” is a vague and uncertain term. All of the members of the class action must be constantly aware of their surroundings so as not to be within 1000 feet of a public playground, pool, recreation center, or swimming or wading pool. This, in turn, impinges on their right to free movement and the right to be free of additional punishment. The class is properly defined and, as defined, it is so numerous that joinder of all members is impracticable.

C. Common Question of Law or Fact Rule 23(a)(2) requires that there be questions of law or fact common to the class. “Not all factual or legal questions raised in the lawsuit need to be common so long as a single issue is common to all class members.” Riordan v. Smith Barney, 113 F.R.D. 60 (N.D.Ill.1986). Thus for purposes of determining the commonality issue, “a class action will not be defeated solely because of some factual variations among class members’ grievances.” Patterson v.. General Motors Corp., 631 F.2d 476 (7th Cir.1980), cert. denied, 101 S.Ct. 1988 (1981).
Defendants argue that there is no question of law or fact common to the class because the way that each class member is burdened by the unconstitutional provisions of the ordinance differs. Defendants argue that since there is “a different protracted scenario in which each putative class member might be unconstitutionally affected by the new ordinance,” commonality is not met. (Defendants’ Response at 4). Defendants argue that those who are cited for violating the challenged provisions will raise “individual questions regarding the circumstances surrounding that event, its legality and the resulting damages, if any. These individual factual questions will predominate over any similarity among the legal theories possibly asserted by a member of such a broad class as Plaintiffs have proposed.” (Id.). Defendants misapprehend the commonality requirement.
As noted above, the factual circumstances affecting the putative class members is not dispositive. The legal issue uniting all class members is whether the challenged ordinance is constitutional. Under current case law, that is all that is required.
There is an assumption of commonality where plaintiffs seek certification of an injunctive class under Rule 23(b)(2) to right alleged constitutional wrongs. See Marisol A. ex rel. Giuliani, 929 F.Supp. 662, 690 (S.D.N.Y.1966) (“Marisol I”), aff’d, 126 F.3d 372 (2d Cir.1997); see also Baby Neal v. Casey, 43 F.3d 48, 57 (3d Cir.1994) (“(b)(2) classes have been certified in a legion of civil rights cases where commonality findings were based primarily on the fact that defendant’s conduct is central to the claims of all class members irrespective of their individual circumstances and the disparate effects of the conduct.”); 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 1763, at 201 (1986) ( “[I]njunctive actions by their very nature often present common questions satisfying Rule 23(a)(2)”).
*4 Nicholson v. Williams, 205 F.R.D. 92, 98 (E.D.N.Y.2001).
Because the question of the constitutionality of the challenged ordinance provisions is common to the putative class, the court finds the commonality requirement is met.

IV. Conclusion For the reasons specified above, the court GRANTS Plaintiffs’ Motion for Class Certification (Docket # 11) and Plaintiffs’ Amended Motion for Class Certification (Docket # 38).
SO ORDERED this 20th day of November 2006.

Footnotes

1

On July 25, 2006, Plaintiffs filed an Amended Complaint to remove former plaintiffs John Doe V and John Doe VI as parties to

3

Does v. City of Indianapolis, Indiana, Not Reported in F.Supp.2d (2006) this cause, and to add a sub-class represented by John Doe II. On that same date, Plaintiffs filed an Amended Motion for Class Certification reflecting these changes. The Amended Complaint and Amended Motion for Class Certification were filed after Defendants filed their Response to Plaintiffs’ Motion for Class Certification. Thus, Defendants’ Response does not address certification of the sub-class. However, Defendants did not file any additional papers objecting to the sub-class. Accordingly, the court presumes Defendants have no objection to the same.
4

 
 U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:06−cv−00865−RLY−WTL

CLOSED

DOES I − VI v. CITY OF INDIANAPOLIS et al Assigned to: Judge Richard L. Young Referred to: Judge William T. Lawrence Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/31/2006 Date Terminated: 06/22/2007 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

JOHN DOES I − VI on their own behalf and on behalf of a class of those similarly situated

represented by Jacquelyn Bowie Suess ACLU OF INDIANA 1031 East Washington Street Indianapolis, IN 46202 (317) 635−4059, ext. 225 Fax: (317) 635−4105 Email: jsuess@aclu−in.org ATTORNEY TO BE NOTICED

Kenneth J. Falk ACLU OF INDIANA 1031 East Washington Street Indianapolis, IN 46202−3952 (317) 635−4059 x229 Fax: (317) 635−4105 Email: kfalk@aclu−in.org ATTORNEY TO BE NOTICED

V. Defendant CITY OF INDIANAPOLIS
Defendant MARION COUNTY SHERIFF

represented by Andrew J. Mallon OFFICE OF CORPORATION COUNSEL 1601 City County Building 200 East Washington Street Indianapolis, IN 46204 (317) 327−4055 Fax: (317) 327−3968 Email: amallon@indygov.org ATTORNEY TO BE NOTICED
James B. Osborn OFFICE OF CORPORATION COUNSEL 1601 City County Building 200 East Washington ST Indianapolis, IN 46204−3372 (317)327−4055 Fax: (317)327−3968 Email: josborn@indygov.org ATTORNEY TO BE NOTICED
represented by Andrew J. Mallon (See above for address) ATTORNEY TO BE NOTICED
James B. Osborn (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/31/2006
05/31/2006 05/31/2006 05/31/2006 05/31/2006 05/31/2006 05/31/2006
05/31/2006
06/02/2006 06/02/2006
06/02/2006 06/02/2006 06/02/2006 06/02/2006 06/02/2006 06/05/2006 06/05/2006 06/20/2006
06/20/2006
06/20/2006

# Docket Text
1 COMPLAINT against CITY OF INDIANAPOLIS and MARION COUNTY SHERIFF, filed by plaintiffs, JOHN DOES I − VI. (Attachments: # 1 City−County General Ordinance)(SDP, ) (Entered: 05/31/2006)
2 CIVIL COVER SHEET filed by plaintiff, JOHN DOES I − VI. (SDP, ) (Entered: 05/31/2006)
3 RECEIPT #104−4386 in the amount of $160.00 for filing fee. (SDP, ) (Entered: 05/31/2006)
4 RECEIPT #104−4385 in the amount of $190.00 for filing fee. (SDP, ) (Entered: 05/31/2006)
5 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (SDP, ) (Entered: 05/31/2006)
6 Summons Issued as to defendants, CITY OF INDIANAPOLIS and MARION COUNTY SHERIFF. (SDP, ) (Entered: 05/31/2006)
7 MOTION to Proceed by Anonymous Names and Motion to Seal Affidavits Containing Actual Names by all plaintiffs. (Attachments: # 1 Text of Proposed Order # 2 Att 1− John Doe I# 3 Att. 2− John Doe II# 4 Att. 3− John Doe III# 5 Att. 4− John Doe IV# 6 Att. 5− John Doe V# 7 Att. 6 − John Doe VI)(Falk, Kenneth) (Entered: 05/31/2006)
8 BRIEF/MEMORANDUM in Support re 7 MOTION to Proceed by Anonymous Names and Motion to Seal Affidavits Containing Actual Names filed by all plaintiffs. (Attachments: # 1 Attachment 1# 2 Attachment 2)(Falk, Kenneth) (Entered: 05/31/2006)
9 MOTION for Preliminary Injunction by all plaintiffs. (Falk, Kenneth) (Entered: 06/02/2006)
10 BRIEF/MEMORANDUM in Support re 9 MOTION for Preliminary Injunction filed by all plaintiffs. (Attachments: # 1 Att. 1− Voting Sites)(Falk, Kenneth) (Entered: 06/02/2006)
11 MOTION to Certify Class by all plaintiffs. (Falk, Kenneth) (Entered: 06/02/2006)
12 BRIEF/MEMORANDUM in Support re 11 MOTION to Certify Class filed by all plaintiffs. (Attachments: # 1 Att. 1)(Falk, Kenneth) (Entered: 06/02/2006)
13 NOTICE of Appearance by James B. Osborn on behalf of all defendants (Osborn, James) (Entered: 06/02/2006)
14 NOTICE of Appearance by Andrew J. Mallon on behalf of all defendants (Mallon, Andrew) (Entered: 06/02/2006)
15 NOTICE of Parties' First Extension of Time by all defendants (Mallon, Andrew) (Entered: 06/02/2006)
16 RETURN of Service by all plaintiffs. CITY OF INDIANAPOLIS served on 5/31/2006. (Suess, Jacquelyn) (Entered: 06/05/2006)
17 RETURN of Service by all plaintiffs. MARION COUNTY SHERIFF served on 5/31/2006. (Suess, Jacquelyn) (Entered: 06/05/2006)
18 MOTION to Dismiss and Response to 7 Plaintiffs' Motion to Proceed by Anonymous Names by all defendants. (Attachments: # 1 Text of Proposed Order)(Mallon, Andrew) Modified on 6/21/2006 (TMA, ). (Entered: 06/20/2006)
19 BRIEF/MEMORANDUM in Support re 18 MOTION to Dismiss and Response to 7 Plaintiffs' Motion to Proceed by Anonymous Names filed by all defendants. (Mallon, Andrew) Modified on 6/21/2006 (TMA, ). (Entered: 06/20/2006)
20 MOTION for Extension of Time to July 4, 2006 to file response to 11 MOTION to Certify Class by all defendants. (Attachments: # 1 Text of Proposed Order)(Mallon, Andrew) (Entered: 06/20/2006)

06/20/2006 06/22/2006 06/22/2006 06/27/2006 06/27/2006 06/28/2006 07/05/2006 07/06/2006 07/07/2006 07/07/2006 07/10/2006 07/13/2006 07/17/2006 07/19/2006 07/25/2006 07/25/2006 07/25/2006 07/25/2006 07/25/2006

21 MOTION for Extension of Time to June 27, 2006 to file response to 9 MOTION for Preliminary Injunction by all defendants. (Attachments: # 1 Text of Proposed Order)(Mallon, Andrew) (Entered: 06/20/2006)
22 ORDER granting 20 Motion for Extension of Time to File Response to 7/5/2006 re 11 MOTION to Certify Class. Signed by Judge William T. Lawrence on 06/22/2006. (TMA, ) (Entered: 06/22/2006)
23 ORDER granting 21 Motion for Extension of Time to File Response to 6/27/2006 re 9 MOTION for Preliminary Injunction . Signed by Judge William T. Lawrence on 06/22/2006. (TMA, ) (Entered: 06/22/2006)
24 REPLY in support of Motion re 7 MOTION to Proceed by Anonymous Names and Motion to Seal Affidavits Containing Actual Names and Memorandum Opposing Motion to Dismiss filed by all plaintiffs. (Falk, Kenneth) (Entered: 06/27/2006)
25 Second MOTION for Extension of Time to June 28, 2006 to file response to 9 MOTION for Preliminary Injunction by all defendants. (Attachments: # 1 Text of Proposed Order)(Mallon, Andrew) (Entered: 06/27/2006)
26 RESPONSE in Opposition re 9 MOTION for Preliminary Injunction filed by all defendants. (Mallon, Andrew) (Entered: 06/28/2006)
27 RESPONSE in Opposition re 11 MOTION to Certify Class filed by all defendants. (Mallon, Andrew) (Entered: 07/05/2006)
28 REPLY in support of Motion re 9 MOTION for Preliminary Injunction filed by all plaintiffs. (Falk, Kenneth) (Entered: 07/06/2006)
29 SCHEDULING ORDER: Evidentiary Hearing on plaintiffs' motion for preliminary injunction set for 8/10/2006 01:30 PM in room #349 before Judge Richard L. Young. Signed by Judge Richard L. Young on 7/7/06. (CLL, ) (Entered: 07/07/2006)
30 SCHEDULING ORDER: Initial Pretrial Conference set for 8/29/2006 08:30 AM in room #277 before Magistrate Judge William T. Lawrence. Signed by Judge William T. Lawrence on 07/07/2006. (TMA, ) (Entered: 07/07/2006)
31 ORDER granting 25 Motion for Extension of Time to File Response to 6/28/2006 re 9 MOTION for Preliminary Injunction . Signed by Judge William T. Lawrence on 07/10/2006. (TMA, ) (Entered: 07/10/2006)
32 MOTION for Extension of Time to July 26, 2006 to file reply to 11 MOTION to Certify Class by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 07/13/2006)
33 ORDER granting 32 Motion for Extension of Time to File Reply to 7/26/2006 re 11 MOTION to Certify Class . Signed by Judge William T. Lawrence on 07/17/2006. (TMA, ) (Entered: 07/17/2006)
34 NOTICE of Filing of Affidavits of Plaintiffs in Support of Motion for Preliminary Injunction by all plaintiffs (Attachments: # 1 Exhibit One# 2 Exhibit Two# 3 Exhibit Three# 4 Exhibit Four)(Falk, Kenneth) (Entered: 07/19/2006)
35 AMENDED COMPLAINT for Declaratory and Injunctive Relief /Class Action against all defendants, filed by all plaintiffs. (Attachments: # 1 Exhibit)(Falk, Kenneth) (Entered: 07/25/2006)
36 STIPULATION of the Parties (First) by all plaintiffs. (Falk, Kenneth) (Entered: 07/25/2006)
37 REPLY in support of Motion re 11 MOTION to Certify Class (Original Motion) filed by all plaintiffs. (Attachments: # 1 Exhibit Ex. One# 2 Exhibit Ex 2)(Falk, Kenneth) (Entered: 07/25/2006)
38 Amended MOTION to Certify Class by all plaintiffs. (Falk, Kenneth) (Entered: 07/25/2006)
39 BRIEF/MEMORANDUM in Support re 38 Amended MOTION to Certify Class and Sub−Class filed by all plaintiffs. (Falk, Kenneth) (Entered: 07/25/2006)

07/25/2006 07/25/2006 07/25/2006 07/31/2006 07/31/2006
08/03/2006 08/07/2006 08/07/2006 08/08/2006 08/09/2006 08/10/2006 08/10/2006 08/10/2006 08/17/2006 08/18/2006 08/19/2006 08/30/2006
09/27/2006 09/29/2006 09/29/2006

40 MOTION for Preliminary Injunction (Renewed) After the Filing of the Amended Complaint by all plaintiffs. (Falk, Kenneth) (Entered: 07/25/2006)
41 Amended MOTION to Proceed by Anonymous Names and Amended Motion to Seal Affidavits Containing Actual Names by all plaintiffs. (Falk, Kenneth) (Entered: 07/25/2006)
42 Submission of Proposed Order Concerning Amended Motion to Proceed by Anonymous Name and Amended Motion to Seal Affidavits Containing Actual Names by all plaintiffs. (Falk, Kenneth) (Entered: 07/25/2006)
43 SCHEDULING ORDER: Status Conference set for 8/1/2006 09:30 AM in room #353 before Judge Richard L. Young. Signed by Judge Richard L. Young on 7/31/06. (CLL, ) (Entered: 07/31/2006)
44 NOTICE of Filing of Affidavits of Christopher Borm/Matthew O'Connor; Joshua Rosenbaum/Destiny Wenning; and Erika Eliason/Emily Woolard in Support of Preliminary Injunction by all plaintiffs (Attachments: # 1 Affidavit Borm/O'Connor# 2 Affidavit Rosenbaum/Wenning# 3 Affidavit Eliason/Woolard)(Falk, Kenneth) (Entered: 07/31/2006)
45 NOTICE of Filing Supplemental Affidavit of Joshua Rosenbaum and Destiny Wenning by all plaintiffs (Attachments: # 1 Affidavit)(Falk, Kenneth) (Entered: 08/03/2006)
46 ORDER granting 41 Motion, denying as moot 7 Motion, denying 18 Motion to Dismiss . Signed by Judge Richard L. Young on 8/7/06. (CLL, ) (Entered: 08/07/2006)
47 SEALED Verified Motions to Proceed by Anononymous Name of the Named Plaintiffs filed by all plaintiffs. (Attachments: # 1 Cover Sheet for Sealed Document)(Falk, Kenneth) (Entered: 08/07/2006)
48 NOTICE by all plaintiffs re 47 SEALED Document Corrected Certificate of Service (Falk, Kenneth) (Entered: 08/08/2006)
49 Findings of Fact &Conclusions of Law (proposed) Concerning Plaintiffs' Motion for Preliminary Injunction by all plaintiffs. (Falk, Kenneth) (Entered: 08/09/2006)
50 NOTICE by all plaintiffs Concerning Witness List, Exhibit List, and Agenda for Preliminary Injunction (Falk, Kenneth) (Entered: 08/10/2006)
51 STIPULATION Joint by all parties. (Osborn, James) (Entered: 08/10/2006)
52 Findings of Fact &Conclusions of Law (proposed) Concerning Plaintiffs' Motion for Preliminary Injunction by all defendants. (Mallon, Andrew) (Entered: 08/10/2006)
53 Findings of Fact &Conclusions of Law (proposed) Alternative by all defendants. (Osborn, James) (Entered: 08/17/2006)
54 CASE MANAGEMENT PLAN TENDERED by all plaintiffs. (Attachments: # 1 Magistrate Judge's Summary CMP)(Falk, Kenneth) (Entered: 08/18/2006)
55 NOTICE of Filing Plaintiffs' Response to Defendants' Alternative Proposed Conclusions of Law by all plaintiffs (Falk, Kenneth) (Entered: 08/19/2006)
56 ENTRY − Parties appear by counsel for initial pretrial conference on Tuesday, August 29, 2006. Conference held and concluded without further order. SCHEDULING ORDER: Status Conference set for 9/29/2006 09:00 AM in Telephonic before Magistrate Judge William T. Lawrence. Signed by Judge William T. Lawrence on 08/30/2006. (TMA, ) (Entered: 08/30/2006)
57 NOTICE of Filing Supplemental Authority by all plaintiffs (Falk, Kenneth) (Entered: 09/27/2006)
58 NOTICE of Service of Initial Disclosures, filed by Plaintiff JOHN DOES I − VI. (Falk, Kenneth) (Entered: 09/29/2006)
59 Minute Entry for proceedings held before Judge William T. Lawrence : Status Conference held on 9/29/2006. Parties appear by counsel. Conference held and concluded without further order. (TMA) (Entered: 09/29/2006)

10/05/2006 11/20/2006 11/20/2006 11/30/2006 12/05/2006
12/20/2006 01/09/2007
01/23/2007 02/07/2007 02/09/2007 03/11/2007 03/12/2007 04/09/2007 04/11/2007
04/19/2007 04/30/2007 05/01/2007

60 ORDER granting 9 Motion for Preliminary Injunction. Signed by Judge Richard L. Young on 10/5/06. (CLL) (Entered: 10/05/2006)
61 ORDER granting 38 Motion to Certify Class; granting 11 Motion to Certify Class. Signed by Judge Richard L. Young on 11/20/06. (CLL) (Entered: 11/20/2006)
62 ORDER granting 40 Motion for Preliminary Injunction. Signed by Judge Richard L. Young on 11/20/06. (CLL) (Entered: 11/20/2006)
63 SCHEDULING ORDER: Status Conference set for 12/20/2006 01:30 PM in room #277 before Magistrate Judge William T. Lawrence. Signed by Judge William T. Lawrence on 11/30/2006. (TMA) (Entered: 11/30/2006)
64 SCHEDULING ORDER: Status Conference set for 12/20/2006 IS VACATED AND RESCHEDULED FOR 1/8/2007 02:00 PM in room #277 before Magistrate Judge William T. Lawrence. Signed by Judge William T. Lawrence on 12/05/2006. (TMA) (Entered: 12/05/2006)
65 RECEIPT for exhibits signed by a representative from the ACLU − IN. (TMA) (Entered: 12/21/2006)
66 ENTRY − Parties appear in person and by counsel for settlement conference on 1/8/07. Conference held and successfully concluded. The Court has been advised that a settlement has been reached. Therefore, all pending motions, if any, are now DENIED AS MOOT and all previously ordered dates, if any, are VACATED. IT IS ORDERED that within thirty (30) days of this date, counsel for the plaintiff shall file a motion to dismiss or a stipulation of dismissal. Signed by Judge William T. Lawrence on 01/09/07. (TMA) (Entered: 01/09/2007)
67 NOTICE of Withdrawal of Appearance by James Osborn on behalf of CITY OF INDIANAPOLIS, MARION COUNTY SHERIFF (Osborn, James) (Entered: 01/23/2007)
68 MOTION for Extension of Time to March 12, 2007 to File Settlement Papers, filed by Plaintiff JOHN DOES I − VI., (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 02/07/2007)
69 ORDER granting 68 Plaintiffs' Motion for Extension of Time to 03/12/2007 to file settlement papers. Signed by Judge William T. Lawrence on 02/09/2007. (TMA) (Entered: 02/12/2007)
70 Second MOTION for Extension of Time to April 11, 2007 to File Settlement Papers, filed by Plaintiff JOHN DOES I − VI., (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 03/11/2007)
71 ORDER granting 70 Motion for Extension of Time to 04/11/2007 to File settlement papers. Signed by Judge William T. Lawrence on 03/12/2007. (TMA) (Entered: 03/12/2007)
72 Third MOTION for Extension of Time to May 11, 2007 to FIle Settlement Papers and Motion for Conference with the Magistrate Judge, filed by Plaintiff JOHN DOES I − VI., (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 04/09/2007)
73 ORDER granting 72 Motion for Extension of Time to 05/11/2007 to File settlement papers. SCHEDULING ORDER: Settlement Conference set for 4/20/2007 08:30 AM in room #277 before Magistrate Judge William T. Lawrence. Signed by Judge William T. Lawrence on 04/11/2007. (TMA) (Entered: 04/11/2007)
74 STIPULATION to Settle All Issues Following Notice to the Class / Motion to Approve Form of Notice to the Class, filed by Plaintiff JOHN DOES I − VI. (Attachments: # 1 Class Notice# 2 Text of Proposed Order)(Falk, Kenneth) (Entered: 04/19/2007)
75 ORDER APPROVING form of notice to the class. Signed by Judge Richard L. Young on 4/30/07. (Attachments: # 1)(CLL) (Entered: 04/30/2007)
76 MOTION for Fairness Hearing, filed by Plaintiff JOHN DOES I − VI., (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 05/01/2007)

05/03/2007 05/11/2007 05/11/2007
06/15/2007 06/18/2007 06/21/2007 06/22/2007

77 MOTION for Fairness Hearing, filed by Plaintiff JOHN DOES I − VI., (Falk, Kenneth) (Entered: 05/03/2007)
78 ORDER granting 76 Motion; granting 77 Motion for fairness hearing. Signed by Judge Richard L. Young on 5/11/07. (CLL) (Entered: 05/14/2007)
SCHEDULING ORDER: Fairness Hearing set for 6/21/2007 03:00 PM in room #349 before Judge Richard L. Young. Signed by Judge Richard L. Young on 5/11/07. (CLL) (Entered: 05/14/2007)
79 NOTICE of Filing Report of Class Counsel by all plaintiffs (Falk, Kenneth) (Entered: 06/15/2007)
80 NOTICE, filed by Plaintiff JOHN DOES I − VI of Tender of Proposed Order. (Attachments: # 1 Text of Proposed Order) (Falk, Kenneth) (Entered: 06/18/2007)
Minute Entry for proceedings held before Judge Richard L. Young : Fairness Hearing held on 6/21/2007. (Court Reporter Fred Pratt.) (CLL) (Entered: 06/25/2007)
81 CLOSED JUDGMENT in favor of Plaintiffs against Defendants. Order APPROVES Stipulation to Settle and Final Judgment. Signed by Judge Richard L. Young on 6/22/07. (CLL) (Entered: 06/22/2007)

Case #: 1:06−cv−00865−RLY−WTL