John Doe v. Rick Raemisch, et al. - Sex Offender Registry, Civil Rights

Sex offense crimes are commonplace and so is the Sex Offender Registy that is today present in most states.  Once an offender's name has been placed one of these, which are normally also available the Internet, having their name removed is next to impossible. Even if their luck is exeptional and their lawyers even better, once a mention to sexual misconduct gets loose on the Internet it will be there for decades. Though professionals dedicate entire practices to removing these references and companies specialize in tracking these reputation-killers down, finding them all can be daunting and take years. The John Does herein faced such problems and the resultant nightmare. 

Plaintiffs John Doe of Connecticut (Doe I) and John Doe of Florida (Doe II) are both adults who were convicted of sex crimes in Wisconsin and subsequently subject to Wisconsin's sex offender registration and notification statutes, Wis. Stat. §§ 301.45, 301.46 (2009-10)^[1]. Plaintiffs filed this action against the Wisconsin Department of Corrections (DOC), its secretary and the director of the DOC's Sex Offender Program, alleging that this application of the sex offender registration requirements constituted punishment in violation of  the ex post facto clauses of the United States and Wisconsin constitutions. Plaintiffs also allege that subjecting them to these laws violated their constitutional rights to equal protection and substantive due process and unconstitutionally impaired their respective plea agreement contracts. Finally, Plaintiffs claim the website that posts their registration information violates their right to privacy under Wis. Stat. § 995.50, and that the rule requiring them to disclose their email accounts, internet user names and addresses, and websites violates their First Amendment rights. 

While Plaintiff's particular challenges to the amended Wisconsin statutes raise some novel issues, the United States Supreme Court has already provided much guidance on the constitutionality of sex offender and registration laws. Most notably, in Smith v. Doe, the United States Supreme Court assessed whether Alaska sex offender registration and notification laws, which are almost identical to Wisconsin's, violated the ex post facto clause of the Constitution. 538 U.S. at 106. The Court first analyzed whether the legislature "either expressly or impliedly" intended to impose punishment or instead intended to enact a regulatory scheme that was civil and non-punitive. Id. at 92. In deciding that question, the Court examined factors such as the intent stated in the preamble, the codification and location of various parts of the law, and the safeguards associated with the law, concluding that the intent was to create a non-punitive scheme.Id. at 94-96. Having reached that conclusion, the Court moved on to consider whether, despite a non-punitive legislative intent, the effects of the law were still punitive. The Court examined five factors to decide the "effects" question: (1) whether the sanction had historically and traditionally been regarded as punishment; (2) whether the sanction imposed an affirmative disability or restraint; (3) whether the sanction promoted the traditional aims of punishment-retribution and deterrence; (4) whether the sanction had a rational connection to a non-punitive purpose; and (5) whether the sanction appeared excessive in relation to that alternative purpose. Id. at 97.

Wisconsin courts have addressed the issue, as well. Wisconsin states courts have consistently held that the sex offender registry "does not evince the intent to punish sex offenders, but rather reflects the intent to protect the public and assist law enforcement." State v. Bollig, 2000 WI 6, ¶ 21, 232 Wis. 2d 561, 605 N.W.2d 199(holding that the sex offender registration requirement does not constitute punishment and was therefore not a direct consequence of Bollig's no contest plea to attempted sexual assault). See also Kaminski v. Schwarz, 2001 WI 94, ¶ 41, 245 Wis. 2d 310, 630 N.W.2d 164 (reaffirming the law's legislative intent as being public safety and "community protection"); State v. Parmley, 2010 WI App 79, 325 Wis.2d 769, 785 N.W.2d 655 (relying on Bollig's determination of legislative intent to resolve question of statutory interpretation); State v. Smith, 2010 WI 16, 323 Wis.2d 377, 780 N.W.2d 90(reiterating the legislative intent as public safety and confirming that the law serves a legitimate government interest, even when applied to persons convicted of false imprisonment absent sexual motivation). Furthermore, Bollig and Kaminski note that during the initial drafting stages of Wisconsin's sex offender registration law, the legislature relied on a report from a DOC working group entitled Sex Offender Community Notification Proposed Components, Executive Summary and Final Report,which emphasized community protection as the underlying motivation behind such a civil regulatory system. Bollig, 2000 WI 6, ¶ 22; Kaminski, 2001 WI 94, ¶¶ 53-54. In other words, Wisconsin's general scheme for sex offender registration — prior to the amendments at issue here as discussed above — has been held to be constitutional by the Wisconsin Supreme Court.

1. Ex Post Facto

Plaintiffs' first contention is that the amendments violate the ex post facto clause of the Constitution. As previously mentioned, relevant Wisconsin and Supreme Court precedent has repeatedly upheld sex offender registration laws, including Wisconsin's law specifically, as constitutional, non-punitive, civil regulatory regimes designed to promote public safety. 

States are prohibited from enacting an ex post facto law. U.S. Const., Art. I, § 10, cl. 1; Wis. Const. Art. I, § 12. To determine whether a law violates the ex post facto clause, a court must determine whether the law imposes new punishment for a prior act; in other words, whether the law is primarily punitive as opposed to primarily a civil remedy or regulatory regime. "To violate the Ex Post Facto Clause, moreover, a law must be both retrospective and penal." United States v. Leach, 639 F.3d 769, 773 (7th Cir. 2011). The question of whether a law is sufficiently punitive so as to violate the ex post facto clause is a "matter of degree." California Dept. of Corrections v. Morales, 514 U.S. 499, 509 (1995). If legislation is more remedial than punitive, even though it may contain some seemingly punitive effects, it will not violate the ex post facto clause's prohibition on retroactive application of punitive laws. See Smith v. Doe, 538 U.S. 84, 94 (2003).

2. Equal Protection/Substantive Due Process

Plaintiffs also contend that Wisconsin's sex offender registration and notification statutes cannot withstand an equal protection analysis^[3] and that the provisions are unconstitutional under the standards of substantive due process. They argue that they were placed in an irrational and disfavored "classification" of offenders who were still serving their sentences as of December 25, 1993, and therefore subjected to lifetime registration, whereas other offenders who had completed their sentences by that date were not subjected to lifetime registration and were therefore more favored. Plaintiffs also assert an equal protection violation^[4] because they did not receive the benefit of an "individualized, risk-determination-based judicial system," which is used in some instances to impose registration on offenders whose crimes do not otherwise qualify them as sex offenders. They argue Wisconsin cannot maintain two systems that can lead to sex offender registration, one which is based on an individualized risk and one which is automatic based on certain convictions.

But Plaintiffs' argument suffers from several flaws. First, Plaintiffs fail to establish they were treated less favorably than other similarly situated persons or groups — an essential element of the equal protection analysis. See, e.g., Moore v. State of Missouri, 159 U.S. 673 (1895); Tigner v. Texas, 310 U.S. 141, 147 (1940); see alsoMarin-Garcia v. Holder, 647 F.3d 666, 673 (7th Cir. 2011) (explaining that "although equal protection requires that all persons similarly circumstanced shall be treated alike, the constitution does not require things which are different in fact to be treated in law as though they were the same.")(citations omitted). Plaintiffs here have failed to even allege, let alone establish, that they were similarly situated to the class of people whom they assert were treated more favorably. Wis. Stat. § 973.048(1m)(a) establishes a judge's authority to order that an offender be subjected to sex offender registration even when the offender did not commit any of the sex offenses that the legislature enumerated as requiring sex offender registration. 

3. Other Claims

Plaintiffs also expressed a variety of other issues they listed with the amendments. In one paragraph of their complaints, Plaintiffs asserted a cause of action for "unconstitutional legislative impairment of plaintiff's plea agreement contract" in violation of Article I, Section 10 of the Constitution. Plaintiffs appear to be arguing that Wisconsin's sex offender registry law added sanctions that were not contemplated when they entered into their plea agreements. This argument is flawed for two reasons.

First Plaintiffs' argument with regard to this claim is premised on the faulty assumption that their sex offender registration constitutes a "sanction." But as discussed above, the sex offender registration is a civil regime designed to protect the public, not a punitive sanction. No additional "sanction" has been imposed on Plaintiffs by virtue of their registration as sex offenders. Furthermore, there is no allegation that any agreement as to the prosecution's sentencing recommendation was not upheld or that the specific crimes to which Plaintiffs pled guilty were changed. Registration as a sex offender pursuant to Wis. Stat. § 301.45 does not interfere with Plaintiffs' plea agreements and their claim in this regard is dismissed.

Next, Plaintiffs have asserted a statutory invasion of privacy claim pursuant to Wis. Stat. § 995.50. (Doe of Connecticut Compl. ¶ 60; Doe of Florida Compl. ¶ 55.) Wis. Stat. § 995.50(2)(b) provides that an invasion of privacy includes "the use, for advertising purposes or for purposes of trade, of the name, portrait, or picture of any living person, without having first obtained the written consent of the person . . ." Plaintiffs' claim is based on their contention that the publication of sex offender information on the Family Watchdog website constitutes Defendants' use of their name and picture for advertising purposes or purposes of trade. But there is no evidence whatsoever that Defendants have any responsibility for operating or maintaining the website or that Defendants have ever used sex offenders' names, pictures, or information for advertising or trade purposes. Furthermore, Wisconsin is required to provide public access to information about sex offenders. See 42 U.S. § 14071. Given that the State of Wisconsin is required to disclose information about registered sex offenders, there is no legal basis for finding Defendants were not entitled to share sex offender registry information with Family Watchdog.

Plaintiffs also argued Wisconsin's sex offender registry law violates the First Amendment right to free speech and expression because the law requires registrants to provide their email and internet account and password information. (Doe of Connecticut Compl. ¶ 61; Doe of Florida Compl. ¶ 56.) But Wisconsin's sex offender registration law does not require registrants to provide any password information. Wis. Stat. § 301.45(2)(a)(6m) requires only that a registrant provide his email address, internet usernames, and websites he maintains; no password information is collected. There is no recognized First Amendment cause of action for a sex offender who is required to provide his email address and websites he maintains where he is not required to provide password information and where there is no allegation that his internet activity has ever been restricted. Plaintiffs' First Amendment challenges on this ground are accordingly dismissed.

4. Qualified Immunity

Regardless of the success of Plaintiffs' arguments on the constitutionality of the amendments, Defendants contended they are immune from the payment of money damages under the doctrine of qualified immunity. "Government officials performing discretionary functions are shielded from damage liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The "plaintiff bears the burden of establishing the existence of the `clearly established' right by citing cases that are `closely analogous' or `would give a reasonable public official . . . notice that [his] actions violated a constitutional right." Burkes v. Klauser, 185 Wis. 2d 308, 338, 517 N.W.2d 503 (1994), cert. denied, 513 U.S. 1151 (1995) (quotingBarnhill v. Board of Regents, 166 Wis. 2d 395, 409, 479 N.W.2d 917 (1992)).

The Court found that Plaintiffs failed to meet this burden. As set forth above, the amendments themselves do not, for the most part, violate Plaintiffs' constitutional rights. The one exception to this, as discussed above, is the fine provision. However, Defendants are nonetheless entitled to qualified immunity on the fine provision as Smith did not specifically address fines and the law in that area was therefore not clearly established.

For the most part, the amendments to the Wisconsin sex offender registry system do not depart in any meaningful way from the systems already found to be constitutional by the Bollig andSmith Courts. The lone exception I find to this is the $100 fine provision, which I have concluded cannot be constitutionally imposed on them. 

With this exception, Defendants' motion for summary judgment was GRANTED and Plaintiffs' motion for summary judgment was DENIED. 

There's another piece of wisdom, which is applicable here:

FIFTEEN'LL GET YA TWENTY!

JOHN DOE OF CONNECTICUT and JOHN DOE OF FLORIDA, Plaintiffs,

v.

RICK RAEMISCH et al., Defendants.

Case No. 10-C-911.

United States District Court, E.D. Wisconsin.

August 28, 2012. [1] All references are to the 2009-10 edition of the Wisconsin Statutes.
[3] Plaintiffs rely on the federal equal protection standard described in Smith v. City of Chicago, 457 F.3d 643, 650-51 (2006) and the Wisconsin standard applied in Nankin v. Shorewood, 2001 WI 92, 245 Wis.3d 86, 630 N.W.2d 141, 2001 Wis. LEXIS 426 (2001). (See Pl. Br. In Supp., ECF No. 27 at 29.) [4] Technically Plaintiffs raise the issue under both equal protection and due process grounds. However, the Supreme Court has noted that "an argument based on equal protection essentially duplicates an argument based on due process." Chapman v. United States, 500 U.S. 453, 465 (1991). Therefore, Plaintiff's equal protection and substantive due process claims will be analyzed together.
http://scholar.google.com/scholar_case?case=12029332088046351794&q=MySpace&hl=en&as_sdt=4,14,112,127,268,269,270,271,272,314,315,331,332,333,334,335,377,378&as_ylo=2012, last visited 10/06/2013

John Doe v. PROSECUTOR, MARION COUNTY, INDIANA - Sex Offender Internet Use

The Internet is a dream come true for child molesters. Offering almost an anonymous victim, normally under little or no adult supervision gives the sexual predator easy access to clandestine meetings with ease. Facebook, Twitter, MySpace, Google Plus and a half dozen more social networking sites offer an additional path which combines with nation-wide access to a large pool of potential victims, many of them as young as their pre-teens with ready victims who are often willing to be sexually involved. Efforts to regulate convicted sex offenders can run afoul of the First and Fourteenth Amendments and have proven difficult to enforce.  The following Indiana case presents the problems faced by the law in the Midwest. 

Should the State prohibit certain registered sex offenders from using social networking sites, instant messaging programs, and chat room programs that allow access by persons under the age of 18? Indiana Code § 35-42-4-12(e), enacted in 2008, makes the knowing or intentional use of these sites a Class A misdemeanor.  Plaintiff John Doe ("Mr. Doe") contends that this statute runs afoul of the targeted sex offenders' First Amendment rights.  Initially, Mr. Doe filed a motion for a preliminary injunction asking the Court to temporarily enjoin enforcement of the statute by Defendant, Prosecutor of Marion County, Indiana ("State"). 

Plaintiff Doe noted that social networking has evolved with astonishing speed. The most prominent social networking site, Facebook, was founded in 2004, just eight years ago. Facebook Newsroom, FACEBOOK, http://newsroom.fb.com/content/default.aspx?NewsAreaId=22 (last visited June 22, 2012) (hereinafter "Facebook Newsroom"). Originally created for college students the domain is now opened up to everyone over the age of 13. Statement of Rights and Responsibilities, FACEBOOK, http://www.facebook.com/legal/terms (last visited June 22, 2012).

Facebook now has over one billion users, including 526 million active daily, and is available in more than 70 languages.  Facebook boasts as many as "7.5 million under the age of 13. Additionally, Consumer Reports survey projects that more than 5 million Facebook users are 10 years old or younger. That Facebook friend might be 10 years old, and other troubling news, CONSUMER REPORTS http://www.consumerreports.org/cro/magazine-archive/2011/june/electronics-computers/state-of-the-net/facebook-concerns/index.htm (last visited June 22, 2012).

in order to comment on online stories on the Indianapolis Star's web site, commenters must now do so through their Facebook accounts. The Indianapolis Star,FACEBOOK, http://www.facebook.com/indianapolis.star (last visited June 22, 2012). The same goes for certain popular political web sites like Politico. Ben Smith, FacebookComments, POLITICO, http://www.politico.com/blogs/bensmith/0811/Facebook_comments.html (last visited June 5, 2012). . By March 2012, more than 125 billion `friend' connections had occurred on Facebook alone. See Facebook Newsroom. And, as evidenced by the "Arab Spring" uprisings in the Middle East, sites like Facebook and Twitter have helped animate numerous social movements. See William Saletan, Springtime for Twitter: Is the Internet Driving the Revolutions of the Arab Spring?, Slate, http://www.slate.com/articles/technology/future_tense/2011/07/springtime_for_twitter.html (last visited June 5, 2012

A new concern is that social networking, chat rooms, and instant messaging programs have effectively created a "virtual playground" for sexual predators. This fear is reinforced by countless news stories, many criminal cases, and television shows like MSNBC's "To Catch a Predator" — which, as the State notes, "sadly never seems to run out of material for new episodes." (Dkt. #47 at 1); see also United States v. Henzel, 668 F.3d 972, 973 (7th Cir. 2012) (defendant challenged sentence that this Court issued after defendant raped 12-year-old victim after luring her across state lines using a chat room frequented by fans of online video games). 

Today certain statistics paint a startling picture of the pervasiveness of online sexual exploitation of minors. According to one 2006 report funded through a grant issued by the United States Congress, one in seven youths has received online sexual solicitations and one in three youths has received online exposure to unwanted sexual material. Janis Wolak et al., Online Victimization of Youth: Five Years Later, NATIONAL CENTER FOR MISSING & EXPLOITED CHILDREN (http://www.missingkids.com/en_US/publications/NC167.pdf) (last visited June 5, 2012). Simply stated, the real world and the virtual world can be dangerous places for vulnerable minors.

Given this backdrop, numerous states, including Indiana, have attempted to combat online sexual exploitation.Indiana Code § 35-42-4-12, in its entirety, reads as follows:

(a) This section does not apply to a person to whom all of the following apply:

(1) The person is not more than:

(A) four (4) years older than the victim if the offense was committed after June 30, 2007; or

(B) five (5) years older than the victim if the offense was committed before July 1, 2007.

(2) The relationship between the person and the victim was a dating relationship or an ongoing personal relationship. The term "ongoing personal relationship" does not include a family relationship.

(3) The crime:

(A) was not committed by a person who is at least twenty-one (21) years of age;

(B) was not committed by using or threatening the use of deadly force;

(C) was not committed while armed with a deadly weapon;

(D) did not result in serious bodily injury;

(E) was not facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC XX-XX-XX-X(1)) or a controlled substance (as defined in IC XX-XX-X-X) or knowing that the victim was furnished with the drug or controlled substance without the victim's knowledge; and

(F) was not committed by a person having a position of authority or substantial influence over the victim.

(b) This section applies only to a person required to register as a sex or violent offender under IC 11-8-8 who has been:

(1) found to be a sexually violent predator under IC XX-XX-X-X.5; or

(2) convicted of one (1) or more of the following offenses:

(A) Child molesting (IC XX-XX-X-X).

(B) Child exploitation (IC XX-XX-X-X(b)).

(C) Possession of child pornography (IC XX-XX-X-X(c)).

(D) Vicarious sexual gratification (IC XX-XX-X-X(a) or IC XX-XX-X-X(b)).

(E) Sexual conduct in the presence of a minor (IC XX-XX-X-X(c)).

(F) Child solicitation (IC XX-XX-X-X).

(G) Child seduction (IC XX-XX-X-X).

(H) Kidnapping (IC XX-XX-X-X), if the victim is less than eighteen (18) years of age and the person is not the child's parent or guardian.

(I) Attempt to commit or conspiracy to commit an offense listed in clauses (A) through (H).

(J) An offense in another jurisdiction that is substantially similar to an offense described in clauses (A) through (H).

(c) As used in this section, "instant messaging or chat room program" means a software program that requires a person to register or create an account, a username, or a password to become a member or registered user of the program and allows two (2) or more members or authorized users to communicate over the Internet in real time using typed text. The term does not include an electronic mail program or message board program.

(d) As used in this section, "social networking web site" means an Internet web site that:

(1) facilitates the social introduction between two (2) or more persons;

(2) requires a person to register or create an account, a username, or a password to become a member of the web site and to communicate with other members;

(3) allows a member to create a web page or a personal profile; and

(4) provides a member with the opportunity to communicate with another person.

The term does not include an electronic mail program or message board program.

(e) A person described in subsection (b) who knowingly or intentionally uses:

(1) a social networking web site; or

(2) an instant messaging or chat room program;

that the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program commits a sex offender Internet offense, a Class A misdemeanor. However, the offense is a Class D felony if the person has a prior unrelated conviction under this section.

(f) It is a defense to a prosecution under this section that the person:

(1) did not know that the web site or program allowed a person who is less than eighteen (18) years of age to access or use the web site or program; and

(2) upon discovering that the web site or program allows a person who is less than eighteen (18) years of age to access or use the web site or program, immediately ceased further use or access of the web site or program.

Indiana Code § 35-42-4-12 (emphasis added). The focal point of Mr. Doe's challenge to the statute was subsection (e), which makes it a Class A misdemeanor for certain sex offenders (those described in subsection (b)) to knowingly or intentionally use "a social networking web site" or "an instant messaging or chat room program" if the offender knows that minors are allowed "access or use" of that site.

Mr. Doe wanted to: (1) use Facebook to monitor his teenage son's social networking activity; (2) participate in certain political speech online that requires social networking accounts; (3) advertise for his small business using social networking; (4) view photographs and videos of family members who are scattered throughout the United States; and (5) participate in certain communications and petitions relevant to pilots (Mr. Doe is also a pilot).

Doe made a facial challenge to the statute at issue on First Amendment grounds. The statute,subsection (e), bars a subset of registered sex offenders from visiting a subset of web sites that minors (and the public at large) use with regularity. The sites include Facebook, Twitter, Google Plus, various chat rooms, and various instant messaging programs. In other words, Mr. Doe is only precluded from using web sites where online predators have easy access to a nearly limitless pool of potential victims.

Facebook, Twitter, Google Plus, and the like are important communication tools, but Mr. Doe still has myriad feasible alternative forms of communications at his disposal, including the ability to congregate with others, attend civic meetings, call in to radio shows, write letters to newspapers and magazines, post on message boards, comment on online stories that do not require a Facebook (or some other prohibited account), email friends, family, associates, politicians and other adults, publish a blog, and use social networking sites that do not allow minors (e.g. LinkedIn and a number of other sites which allow only adults). The Court readily concedes that social networking is a prominent feature of modern-day society; however, communication does not begin with a "Facebook wall post" and end with a "140-character Tweet."

For the above reasons, the Court DENIED Mr. Doe's Motion for Preliminary Injunction and his request for permanent relief in the form of a declaratory judgment and a permanent injunction. Final judgment entered in favor of the State

John Doe v. PROSECUTOR, MARION COUNTY, INDIANA

Case No. 1:12-cv-00062-TWP-MJD.

United States District Court, S.D. Indiana, Indianapolis Division.

June 22, 2012.

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