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.
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).
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.
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.
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!
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.
JOHN DOE OF CONNECTICUT and JOHN DOE OF FLORIDA, Plaintiffs,
v.
RICK RAEMISCH et al., Defendants.
United States District Court, E.D. Wisconsin.
