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ATTORNEYS FOR APPELLANT Gregory F. Zoeller Attorney General of Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

ATTORNEY FOR APPELLEE Cara Schaefer Wieneke Indianapolis, Indiana ATTORNEYS FOR AMICUS CURIAE INDIANA OFFICE OF THE PUBLIC DEFENDER Stephen T. Owens Public Defender of Indiana ` Emily J. Witney Gregory L. Lewis Deputy Public Defenders Indianapolis, Indiana

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Indiana Supreme Court
_________________________________ No. 52S02-1011-CV-642 BRUCE LEMMON, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE INDIANA DEPARTMENT OF CORRECTION,

In the

FILED
Jun 28 2011, 1:02 pm
of the supreme court, court of appeals and tax court

CLERK

Appellant (Respondent below), v. MICHAEL L. HARRIS, Appellee (Petitioner below). _________________________________ Appeal from the Miami Circuit Court, No. 52C01-0709-MI-644 The Honorable Robert A. Spahr, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 52A02-0911-CV-1088 _________________________________

June 28, 2011 Sullivan, Justice.

A sex offender who committed his crimes before the Legislature created the status of sexually violent predator challenges that status being subsequently imposed upon him by operation of law. We conclude that his status has in fact changed by operation of law and that this change does not violate Indiana`s prohibition on ex post facto laws or doctrine of separation of powers. Background

In April, 1999, Michael Harris pled guilty in Kosciusko Superior Court to child molesting as a Class B felony. He was sentenced to a prison term of ten years and was required to register on the sex offender list for a period of ten years following his release from incarceration. Harris was released to parole in 2002,1 2005, and 2007, but was subsequently reincarcerated each time for parole violations. He was last released on December 1, 2008,2 and has completed parole.

Either simultaneously with or prior to his releases in 2007 and 2008, the Department of Correction notified Harris that he was required to register as a sexually violent predator (SVP) with local law enforcement for his lifetime. The notification forms included the question Is the offender a sexually violent predator under IC 35-38-1-7.5? and a box that was checked Yes. Appellant`s App. 104-05. The forms also included the question How long is the offender required to register under IC 11-8-8? and a box that was checked Life. Id. Harris refused to sign the forms on both occasions. He acknowledged that he must register with local law enforcement as a sex offender for ten years but disagreed that he was an SVP and required to register for life.

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Harris first registered as a sex offender after his release from prison in 2002. Thus, Harris`s ten-year reporting obligation commenced on December 1, 2008, with his final release from incarceration.

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In September, 2007, while still incarcerated,3 Harris filed a complaint in the Miami Circuit Court for declaratory judgment and injunctive relief against the Commissioner of the Indiana Department of Correction4 (referred to collectively with the Department of Correction as DOC). Arguing primarily that the DOC lacked the authority to make an SVP determination, he requested a declaration that his reporting obligation was for ten years following his release from incarceration and further requested that the DOC remove the term sex predator and statement lifetime notification from his offender detail and type on the Indiana Sheriff`s Sex and Violent Offender Registry website.5 The trial court denied both parties` motions for summary judgment and, following a bench trial, entered a declaratory judgment and injunctive relief for Harris, thereby removing his SVP status.

The Court of Appeals affirmed the trial court. It held that the DOC was not authorized by statute to determine Harris`s status as an SVP and that his status did not change by operation of law under Indiana Code section 35-38-1-7.5(b). Buss v. Harris, 926 N.E.2d 1110, 1117-18 (Ind. Ct. App. 2010), reh`g denied. Thus, the Court of Appeals concluded that he was required to report for ten years and not for his lifetime, as the change to the duration of Harris`s reporting obligation would have occurred only by a finding and conclusion that his status had changed. Id. at 1118. The DOC sought, and we granted, transfer, Buss v. Harris, -- N.E.2d -- (Ind. 2010) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).

According to the trial court, Harris chose to file his complaint prior to his release in order to call atte ntion to his plight triggered by the Indiana General Assembly`s repeated amendments of Indiana Code [s]ection 35-38-1-7.5 since [he] was convicted. Appellant`s App. 9. 4 We note that Bruce Lemmon has taken the place of Edwin G. Buss as Commissioner of the Indiana Department of Correction, effective January 17, 2011. IDOC: Biographies, http://www.in.gov/ idoc/2347.htm (last visited June 27, 2011). As the successor to Commissioner Buss, Commissioner Lemmon has been automatically substituted as a party pursuant to Indiana Trial Rule 25(F)(1). 5 It is not clear on what date the website was updated to reflect the fact that Harris was an SVP with a lifetime-registration requirement.
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Discussion

I The Indiana Sex Offender Registration Act (the Act) generally requires persons convicted of certain offenses to register with local law enforcement agencies and to disclose detailed personal information. This Court has been required to interpret the Act in several cases in recent years. See Hevner v. State, 919 N.E.2d 109 (Ind. 2010) (considering whether the Act as applied violates Indiana`s prohibition on ex post facto laws); State v. Pollard, 908 N.E.2d 1145 (Ind. 2009) (same); Jensen v. State, 905 N.E.2d 384 (Ind. 2009) (plurality opinion) (same); Wallace v. State, 905 N.E.2d 371 (Ind. 2009) (same); Jones v. State, 885 N.E.2d 1286 (Ind. 2008) (considering when the Act requires the trial court to make an SVP determination).

One of the reasons we have had so many cases involving the Act is that it has been amended multiple times since first being enacted in 1994. See Wallace, 905 N.E.2d at 374-77 (outlining the history of the Act and its various amendments); Doe v. O`Connor, 790 N.E.2d 985, 986-87 (Ind. 2003) (same). Here is a brief sketch of the Act`s evolution (with the key changes from year-to-year emphasized): 1. The Act as amended through 1997 (1997 Act): a. A sex offender is defined as a person convicted in Indiana after June 30, 1994, of a qualifying offense listed in Indiana Code section 5-2-12-4(1) (Supp. 1997); this list included child molestation. I.C.

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