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South Milwaukee ordinance restricting residency of sex offenders upheld against ex post facto and double jeopardy challenges

City of South Milwaukee v. Todd J. Kester, 2013 WI App 50; case activity

Sex offender residency restrictions – constitutionality; ex post facto and double jeopardy

 South Milwaukee’s ordinance prohibiting persons convicted of certain child sex offenses from living within 1,000 feet of a school or other facility frequented by children does not violate the double jeopardy or ex post facto prohibitions of the state or federal constitution:

¶31      Kester fails to offer the “clearest proof” that the Ordinance is a criminal and punitive measure rather than its stated purpose as a civil, nonpunitive regulatory scheme.  As such, the City’s Ordinance as applied to him does not violate the Double Jeopardy and Ex Post Facto Clauses.

While this case is not directly related to SPD practice, restrictions like those imposed by the ordinance here are one of the many potential collateral consequences of a conviction of a child sex offense.  The result is not surprising, as it is the one most courts have reached, with the leading case being Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (rejecting challenges based on procedural and substantive due process and ex post facto grounds). In a few places the opinion reflects the common reductionist, sometimes inaccurate beliefs about convicted sex offenders–e.g., “We state the obvious: All convicted child sex offenders have proven themselves to be dangerous” (¶30), as though every child sex offender is the same, no matter the facts of the crime or how long ago it was committed, and is bound to reoffend, and so a blanket residency rule is necessary and efficacious. Of course, the literature disputing those notions–for instance, here and here–would get little weight because of the deference courts accord to legislative judgments on these matters.

For those interested in the court’s reasoning, the court applies the well-worn test for looking at the legislation’s intent and effects, the court concludes the single reference to punishment in the ordinance “is outweighed by express language in the Ordinance declaring it to be ‘a regulatory measure aimed at protecting the health and safety of children in South Milwaukee.’” (¶23). Next, the court applies the factors from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963), for determining whether a law is punitive for double jeopardy and ex post facto challenges, and which were employed in Smith v. Doe, 538 U.S. 84 (2003) (upholding Alaska’s sex offender registration law against an ex post facto challenge). It agrees with Kester the ordinance involves an affirmative disability or restraint, but concludes that residency restrictions have not historically have been regarded as punishment (and do not resemble the historical punishments of shaming or banishment). (¶¶26-27). The court acknowledges the ordinance serves a deterrent purpose, but rejects the claim it promotes retribution. (¶28). Finally, the ordinance is not excessive in relation to its nonpunitive purpose; even though residency restrictions in other municipalities are less onerous and thus show that the city’s objectives can be reached with less drastic means, the city may make  reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences. In any event, “the City did not have to enact the best measure to reach its aims, only a reasonable one.” (¶30).

Local sex offender residency restrictions — preemption of ordinance by state law

The South Milwaukee ordinance is not pre-empted by state laws governing sex offenders, rejecting the claims of Kester (and amicus WACDL) that contrary to Anchor Sav. & Loan Ass’n v. Equal Opportunities Comm’n, 120 Wis. 2d 391, 397, 355 N.W.2d 234 (1984), the ordinance defeats the purpose and violates the spirit of state legislation:

¶19      Kester contends that the Ordinance defeats the purpose and violates the spirit of the state’s scheme to reassimilate sex offenders into society, see Wis. Admin. Code § DOC 328.04(1) (Dec. 2006), and protect public safety by minimizing the population density of sex offenders, see Wis. Stat. § 301.03(19). Accepting Kester’s contention as to the purpose and spirit of the state’s laws, the Ordinance is not demonstrably contrary to these goals. The purpose of the Ordinance is to reduce the risk of reoffense by child sex offenders. See SMMC § 23.167-1. Such a purpose advances both the reassimilation of sex offenders into the larger community and the protection of the public. Kester has not shown that the Ordinance defeats the purpose or violates the spirit of the state laws regulating child sex offenders. Accordingly, we find that the Ordinance is not preempted by state law.

Kester also made a claim regarding a municipality’s power to define public nuisances and, based on that claim, a procedural due process argument. But the court rejects those arguments, too, holding that the ordinance does not require a showing that Kester presents a risk of reoffending—that is, that his residing where he does creates an “actual nuisance”—or a hearing at which such a risk would have to been shown. Instead, the court treats the ordinance as making it a “nuisance per se” for a person who has been convicted of certain denominated offenses to live within 1,000 feet of certain facilities. (¶¶8-12). Any hearing is therefore limited to whether the person satisfies those two criteria. (¶¶13-14).

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