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Failure to Comply with Sex Offender Registration, § 301.45

State v. James W. Smith, 2010 WI 16, affirming 2009 WI App 16; for Smith: Shelley M. Fite, SPD, Madison Appellate

The § 301.45 reporting requirement applicable to any violation of false imprisonment of a minor not the defendant’s child is rationally related to a legitimate government interest in protecting the public, particularly children, ¶¶27-36.

Keep in mind that Smith challenged the statute as applied to him. The majority pays lip service to this notion, then it’s off to the races about proof problems if the abductor’s intent to sexually assault is thwarted. Well, yes. But what, exactly has that to do with Smith? The dissent admirably distills the facts:

¶41      When James Smith was 17 years old, he was convicted of falsely imprisoning another 17-year-old boy for the purpose of collecting a drug debt. Smith, the State, the circuit court, the court of appeals, and the majority all agree that “there is no allegation that the false imprisonment entailed anything sexual.” Majority op., ¶3. Nevertheless, based on this conviction, the majority concludes that there is a rational basis for making Smith register as a sex offender.

As the dissent goes on to show, the majority has just made a hash out of as-applied analysis. No point repeating it. (An aside. The majority punches up boilerplate from an anti-judicial activism program, ¶39: “In reality, our proper judicial role is one of restraint and deference.  Flynn v. DOA, 216Wis. 2d 521, 529, 576 N.W.2d 245 (1998) (‘Our form of government provides for one legislature, not two.’).” Yes, well, but not one legislature and a rubber stamp. If registering James Smith as a sex offender bears some rational relationship to protecting the public in some way, shape or form from sex offenses, then it’s hard to imagine what offender wouldn’t. So far as the opinion demonstrates, anyway.) The net result is that if you don’t have a 301.45 case on your docket, it’s probably just a matter of time. Don’t think, though, that Wisconsin is way out in front of this curve: “Georgia’s Supreme Court is upholding the government’s right to put non-sex offenders on the state’s sex-offender registry, highlighting a little-noticed (but growing) nationwide practice.” The Georgia decision, not cited in Smith, was released 4 days earlier (Rainer v. State, GA SCt No. S09A1900), and may be found here.

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