Doe v. Raemisch et al
Filing
67
DECISION AND ORDER signed by Chief Judge William C Griesbach on 1/3/2013 denying 58 Motion to Alter Judgment; denying 60 Motion to Alter Judgment. (cc: all counsel) (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN DOE OF CONNECTICUT and
JOHN DOE OF FLORIDA,
Plaintiffs,
v.
Case No. 10-C-0911
RICK RAEMISCH et al.,
Defendants.
DECISION AND ORDER DENYING RULE 59
MOTIONS FOR RECONSIDERATION
Plaintiffs, both individuals who had previously been convicted of sexual assault in
Wisconsin, brought this action challenging the constitutionality of Wisconsin’s sex offender
registration and notification statute, Wis. Stat. §§ 301.45, 301.46 (2009-10), as applied to
individuals whose convictions preceded the statute’s effective date. Although constitutional
challenges to the retroactivity of similar statutes had been previously been rejected by other courts,
including the United States Supreme Court, plaintiffs brought a broad-based challenge against the
entire statutory framework. Plaintiffs claimed that the statutes impose punishment in violation of
the ex post facto clauses of the United States and Wisconsin constitutions, and that the laws violate
plaintiffs’ constitutional rights to equal protection and substantive due process. On August 28,
2012, the Court issued an order rejecting in full all but one of plaintiffs’ claims. On the parties’
cross motions for summary judgment, the Court granted the plaintiffs’ motion in part, finding the
§ 301.45(10) requirement that plaintiffs pay a $100 annual assessment constituted an
unconstitutional ex post facto fine. In all other respects, the Court denied plaintiffs’ motion and
granted defendants’ motion. Pursuant to Federal Rule of Civil Procedure 59(e), both parties have
now filed motions for reconsideration of the Court’s decision as to the ex post facto and equal
protection issues. For the reasons that follow, both motions will be denied.
Plaintiffs move the Court for reconsideration on several grounds, contending first that the
Court erred in failing to find that Wisconsin imposes in-person reporting requirements that make
Wisconsin’s sex offender registration law materially different than the Alaska law considered in
Smith v. Doe, 538 U.S. 84 (2003), and as a result Smith is not controlling. Rather, plaintiffs argue
the in-person reporting requirements amount to physical restraints similar to criminal sanctions.
Plaintiffs contend that the Court relied on an erroneous characterization of plaintiffs’ Statement of
Proposed Findings of Fact in concluding that plaintiffs failed to put forth proof of physical restraints
on their liberty such that the law’s execution is punitive. Second, plaintiffs argue the Court
“misapprehended the arbitrariness” of Wisconsin’s sex offender registration law with regard to its
application to offenders based on the statute’s effective date. (Pls.’ Recons. Br. 7, ECF No. 61.)
As such, plaintiffs contend the Court’s conclusion that plaintiffs failed to demonstrate that they were
similarly situated to the favored class and that plaintiffs failed to establish there was no rational
basis for disparate treatment under the law was erroneous.
In addition, defendants seek reconsideration of the Court’s decision granting summary
judgment in favor of plaintiffs as to the unconstitutionality of the $100 annual assessment.
Defendants contend that the “specific fee issue addressed by the court was not squarely raised prior
to the summary judgment decision” and is therefore appropriate for reconsideration. (Defs.’
Recons. Br. 2, ECF No. 59.) Defendants assert that the Court incorrectly applied the law in
2
concluding the $100 annual assessment imposed under § 301.45(10) constitutes an unconstitutional
ex post facto fine.
LEGAL STANDARD
A Rule 59(e) motion may be granted where a party demonstrates the discovery of newly
discovered evidence, an intervening change in the controlling law, or a “manifest error of law” by
the court. Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998). “A ‘manifest error’ is not
demonstrated by the disappointment of the losing party.
It is the ‘wholesale disregard,
misapplication, or failure to recognize controlling precedent.’” Oto v. Metro. Life Ins. Co., 224 F.3d
601, 606 (7th Cir. 2000) (quoting Sedrak v. Callahan, 987 F. Supp. 1063, 1069 (N.D. Ill. 1997)).
The purpose of a Rule 59(e) motion is to enable a district court to correct its own errors and thus
avoid unnecessary appellate procedures. Divane v. Krull Elec.Co., 194 F.3d 845, 848 (7th Cir.
1999). But the motion “is not appropriately used to advance arguments or theories that could and
should have been made before the district court rendered a judgment.” LB Credit Corp. v.
Resolution Trust Corp., 49 F.3d 1263 (7th Cir. 1995). Nor should such a motion be used to present
evidence that was available earlier or attempt to correct a party’s own procedural errors. Popovits
v. Circuit City Stores, Inc., 185 F.3d 726, 730 (7th Cir. 1999); Frietsch v. Refco, Inc., 56 F.3d 825,
828 (7th Cir. 1995) (“It is not the purpose of allowing motions for reconsideration to enable a party
to complete presenting his case after the court has ruled against him.”). As a result, Rule 59(e)
motions should be “rare.” Bank of Waunakee v. Rochester Cheese Sales, Inc.,906 F.2d 1185, 1191
(7th Cir. 1990).
3
ANALYSIS
I.
Plaintiffs’ Ex Post Facto Claims
Plaintiffs first argue that the Court erroneously characterized the record of undisputed facts
related to the obligation imposed on them under Wisconsin’s current sex offender registration law
to periodically report in person to local law enforcement offices for the purpose of having their
photographs and fingerprints taken. In its original decision, the Court acknowledged that subjecting
offenders convicted under earlier versions of the law to the authority granted the Wisconsin
Department of Corrections under the current version to require a person covered by the law “to
report to a place designated by the department, including an office or station of a law enforcement
agency, for the purpose of obtaining the person’s fingerprints, the photograph or other information,”
Wis. Stat. § 301.45(2)(f), could be implemented in such a way as to punish an offender. (Aug. 28,
2012 Decision 14, ECF No. 55.) The Court concluded, however, that plaintiffs had failed to
develop such a claim in this case because “[a]lthough they state that they have been required to
travel to specified law enforcement facilities to have their photographs taken and to be fingerprinted,
Plaintiffs do not indicate that this has occurred more than once.” (Id. at 14-15 (citing Pl.’s PFOF
¶ 32, ECF No. 45-1).) The Court concluded that “[s]uch a minimal reporting requirement is not
‘sufficiently severe to transform an otherwise nonpunitive measure into a punitive one.’” (Id. at 15
(citing Doe v. Patacki,120 F.3d 1263, 1285 (2d Cir. 1997) (rejecting ex post facto challenge to 90
day in person reporting requirement); Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 378 (1995) (same)).)
Plaintiffs contend that the Court essentially misread the record and that they in fact had explained
in their respective affidavits that they were required to make such “in person” reports “periodically.”
(Pls.’ Mem. In Support 4-5, ECF No. 61.) As a result, plaintiffs contend that the Court erred in
4
finding no material difference between the sex offender registration and reporting law at issue here
and Alaska’s analogous law considered in Smith. 538 U.S. 84 (2003). They assert that because the
laws are, in fact, materially different–namely, that the Wisconsin law requires offenders to report
to law enforcement agencies in person to be photographed and fingerprinted–the holding in Smith
is not controlling in this case.
Plaintiffs also cite the Seventh Circuit’s decision in Schepers v. Comm’r, 691 F.3d 909 (7th
Cir. 2012), in support of their contention that such an “in person” reporting requirement constitutes
punishment. In Schepers, decided the same day as this Court’s decision, the Seventh Circuit held
that the failure of the Indiana Department of Corrections to provide a procedure by which
individuals subject to that state’s sex offender reporting and notification statute could correct errors
in the registry maintained by the Department violated the Due Process Clause of the Fourteenth
Amendment. The plaintiffs alleged that the Indiana Department of Corrections’ failure to provide
any procedure to correct errors in the registry infringed on a liberty interest protected by the Due
Process Clause. Id. The Court commented that the interest was “much more than [a] simple
reputational interest” and explained that the Indiana statute deprived registrants
a variety of rights and privileges held by ordinary Indiana citizens, in a manner
closely analogous to the deprivations imposed on parolees or persons on supervised
release. Citizens do not need to report to the police periodically, nor is their right
to travel conditioned on notifications to the police in both the home and the
destination jurisdiction. Unlike Schepers, who was forbidden from living within
1,000 feet of a school or park while he was categorized as a sexually violent
predator, members of the public are free to decide where they wish to live.
Schepers, 691 F.3d at 914 (emphasis added) (citing Paul v. Davis, 424 U.S. 693 (1976)). The Court
concluded that mistakenly labeling a sex offender as a sexually violent predator implicated a liberty
5
interest protected by the Due Process Clause. Id. at 915. Plaintiffs argue that Schepers supports
their claim that the requirements of Wisconsin’s law are punitive.
Turning first to the contention that the Court misconstrued the facts, it should be noted that
the factual finding proposed by plaintiffs and referenced by the Court in its original decision made
no mention of periodic “in person” visits to law enforcement agencies. It simply stated that “as part
of their registration requirements, plaintiffs have been required to travel to specified law
enforcement facilities to have their photographs taken and to be fingerprinted which is authorized
by § 301.45(2)(f), Wis. Stats.” (Pl.’s PFOF ¶ 32. ECF No. 45-1.) Even their underlying affidavits
which are cited as support for the proposed finding do not indicate that they made such visits more
than once. Their affidavits state merely that “[i]n DOC’s discretion and subject to its demand,”
plaintiffs were “subject to providing periodic photographs and fingerprints.” (Aff. of John Doe of
Connecticut ¶ 30, ECF No. 34; Aff. of John Doe of Florida ¶ 21, ECF No. 39.) The fact that DOC
is given authority under the statute to require sex offenders subject to the law to personally appear
at a law enforcement agency does not mean that the DOC ever exercised that authority over
plaintiffs. Plaintiffs failed to state either in their proposed findings or their original affidavits that
they were ever directed to report by the Wisconsin DOC. Plaintiffs have now submitted new
affidavits, however, explaining in greater detail what they stated generally in their original affidavits.
(Aff. of Doe I ¶ 2, ECF No. 61-1; Aff. of Doe II ¶ 2, ECF No. 61-2.)
It is well established that “[a] party may not introduce evidence or make arguments in a Rule
59 motion that could or should have been presented to the court prior to judgment.” United States
v. 47 W. 644 Rt. 38, Maple Park, Ill., 190 F.3d 781, 783 (7th Cir. 1999); Moro v. Shell Oil Co., 91
F.3d 872, 876 (7th Cir. 1996) (“The rule . . . certainly does not allow a party to introduce new
6
evidence or advance arguments that could and should have been presented to the district court prior
to the judgment.”); Green v. Whiteco Industries, Inc., 17 F.3d 199, 202, n.5 (7th Cir. 1994) (finding
that new affidavits submitted with a motion to reconsider did not present evidence that was
previously unavailable); F/H Indus., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 116 F.R.D.
224, 227 (N.D. Ill. 1987) (“Newly filed affidavits may be the basis of an order vacating a judgment
under Rule 59(e) where the aggrieved party was not properly allowed an opportunity to present its
side.”). Plaintiffs appear to have presented little justification for why their new affidavits should
receive any mention, and defendants insist the Court must disregard them. Nevertheless, the
affidavits do not change the result here.
The new affidavits explain that plaintiffs must travel to specific law enforcement agency
locations to provide current photographs and fingerprints. (Aff. of Doe I ¶ 2, ECF No. 61-1; Aff.
of Doe II ¶ 2, ECF No. 61-2.) Plaintiffs state they are not allowed to do so via mail as is the case
with other information provided pursuant to Wisconsin’s sex offender registration law. In the case
of Doe I, he states he must report to a station 60 miles from his Connecticut home once every three
years to be photographed and fingerprinted in both Connecticut and New York. (Aff. of Doe I ¶
2, ECF No. 61-1.) Likewise, Doe II must appear at the county Sheriff’s department where he lives
in Florida twice per year, requiring travel more than 30 miles each way. (Aff. of Doe II ¶ 2, ECF
No. 61-2.) In addition, Doe II asserts that since 2011, an armed and uniformed Florida police officer
has come to his home once per month to question him and obtain proof of a current driver’s license
with unaltered sex offender status on it. (Id.)
This is not new evidence and it could have been previously raised, as plaintiffs knew about
it at the time they submitted summary judgment briefs. Nevertheless, plaintiffs have still not made
7
clear that any of these requirements are imposed by the law at issue–Wisconsin’s sex offender
registration law. It is plaintiffs’ convictions for sex offenses in Wisconsin that subject them to the
sex offender registration laws of the states where they currently reside.
See Wis. Stat.
§ 301.45(4m)(a), (b). But the specific reporting requirements imposed by Connecticut and Florida
are not mandated by Wisconsin law, and are not under consideration here.1 Plaintiffs offer no
evidence or even assertion that they have ever been ordered by the Wisconsin DOC to report in
person to a place, such as a law enforcement station or department, to be fingerprinted or
photographed. They have no standing to challenge provisions of a law to which they have not been
made subject. Harp Adver. Ill., Inc., v. Village of Chicago Ridge, Ill., 9 F.3d 1290, 1292 (7th
Cir.1993). Plaintiffs were at liberty to move to Connecticut and Florida, and in so doing, chose to
be subject to the laws–including the sex offender registration and notification laws–of those states.
In sum, there is nothing in plaintiffs newly-submitted affidavits or in their previous filings to alter
the Court’s earlier conclusion that plaintiffs have failed to develop a claim that Wisconsin’s sex
offender registration law has been implemented in a manner that constitutes punishment for their
previous convictions.
Shepers does not change the result either. Shepers held that the restrictions placed on sex
offenders by Indiana’s registration and notification statute, many of which have been found nonpunitive by the Supreme Court, implicated the liberty interests of individuals who claimed they were
1
See Fla. Stat. § 943.0435(2-3), (6) (“[L]aw enforcement agencies . . . shall verify the
addresses of sexual offenders who are not under the care, custody, control, or supervision of the
Department of Corrections”); Fla. Stat. § 943.0435(14)(a) (“A sexual offender must report in person
. . . to the sheriff’s office in the county in which he or she resides or is otherwise located to
reregister.”); Fla. Stat. § 775.21(6-8) (same as applied to “sexual predators”); Conn. Gen. Stat. § 54251(b), (c) (requiring registrants to verify information such as current address via mail, and
requiring registrants to report to a law enforcement agency to retake a photograph at least once every
five years).
8
erroneously placed on the list. Shepers did not address the question of whether the retroactive
application of the restrictions to individuals whose convictions predate the effective date of the
statute violates the Ex Post Facto Clause of the United States Constitution. For the reasons set forth
in its original decision, the Court concludes they do not.
II.
Plaintiffs’ Renewed Equal Protection Argument
Plaintiffs also argue that the Court erred in dismissing their equal protection claim. Plaintiffs
contend the Court overlooked material evidence in concluding that plaintiffs “failed to allege, much
less establish, that they were similarly situated” to sex offenders that completed their sentences prior
to the December 25, 1993 effective date. Plaintiffs point to allegations in their complaint and
summary judgment brief that they claim indicate that they were similarly situated to the “disfavored
class.” (Pls.’ Recons. Br. 8-9, ECF No. 61.) Plaintiffs also contend that the Court erred in
concluding that there was a rational basis for distinguishing between the sex offenders who were
still serving their sentences as of December 25, 1993 and other sex offenders who had completed
their sentences by the effective date. Much of plaintiffs’ argument to this end simply rehashes issues
raised at summary judgment and offers nothing new. To a large extent, plaintiffs simply ignore the
deference to which legislative judgments of the kind at issue here are to be accorded by courts.
Plaintiffs have pointed to no evidence sufficient to overturn the conclusion that their claim
cannot be sustained because there is a rational basis for making the distinction between offenders
still serving their sentences as of the effective date, compared to offenders who had already
completed their sentences. Under a rational basis analysis, “a classification ‘must be upheld against
equal protection challenge if there is any reasonably conceivable state of facts that could provide
9
a rational basis for the classification.” See Turner v. Glickman, 207 F.3d 419, 425 (7th Cir. 2000).
Empirical proof is not required and generally not available for legislative determinations of this
kind. Plaintiffs must prove, beyond a reasonable doubt, that the statute is not rationally related to
a legitimate government interest. State v. Smith, 2010 WI 16, ¶ 8, 323 Wis. 2d 377, 780 N.W.2d
90. Here, the Court has already explained why in its judgment the legislature had a rational basis
for finding that offenders who were still serving their sentence as of the effective date included sex
offenders who were either more recent offenders or those who had committed more serious offenses
and were thus serving longer sentences. At the same time, offenders who completed their sentences
by the effective date likely committed their offenses more remotely in time, or committed less
serious crimes. As in most statutes, the line drawn is not perfect. There will be some offenders that
fall within who are less dangerous than some who are excluded. Perfection is neither required nor
possible; reasonableness is. Here, the legislature drew a line based on its assessment of the danger
offenders posed to society. As such, it is reasonable to distinguish between these more recent or
serious offenders and those who had completed their sentences by the effective date, and plaintiff
has failed to prove otherwise.
III.
Defendants’ Motion for Reconsideration
Finally, defendants argue that the Court relied on an incorrect application of the law in
deciding that the $100 fee assessment imposed under Wis. Stat. § 310.45(10) was an
unconstitutional fine. Defendants argue that under Smith, the Court must assess the statute as a
whole, and because the fee assessment is a part of a comprehensive statutory scheme, the Court
improperly considered its constitutionality separately. Defendants assert this particular issue was
10
not “squarely raised” before summary judgment; as such, defendants claim the issue is appropriately
raised under Rule 59(e) and was not waived.
It is true that plaintiffs sought a determination that Wisconsin’s entire sex offender
registration and notification act was unconstitutional as applied to them. But implicit in their
argument was the claim that certain provisions violated their constitutional rights, and plaintiffs
expressly mentioned the annual fee assessment as one of those provisions. (Pls.’ Br. in Opp. 6, ECF
No. 47.) If, as the Court has found, one provision of the challenged statutes can not be
constitutionally applied retroactively to individuals whose convictions precede the effective date of
the statute, then surely it makes more sense to hold that provision invalid as to such offenders, to
in a sense sever the provision, than to declare application of the entire statute unconstitutional. See
United States v. Booker, 543 U.S. 220, 258 (2005) (noting that court must “refrain from invalidating
more of the statute than is necessary”) (internal quote omitted). Still, because neither party
addressed the issue in detail, it merits further consideration.
Defendants argue that Doe v. Bredesen, 507 F.3d 998 (6th Cir. 2007) is instructive. There,
the Court analyzed the constitutionality of Tennessee’s sex offender registration and monitoring
statutes and found that they did not violate the ex post facto clause. 507 F.3d at 1000. The
Tennessee statute implemented continuous satellite-based monitoring of violent sexual offenders
and authorized the board of probation and parole to charge offenders a fee to recoup costs of the
monitoring program. The Sixth Circuit upheld the law in its entirety, but did not discuss the
constitutionality of the fee provision. Indeed, it is not clear from the Court’s opinion that the
plaintiff was even assessed a fee. Under these circumstances, Bredesen is hardly persuasive
11
authority that fees of this nature can be constitutionally applied retroactively without violating the
Ex Post Facto Clause of the United States Constitution.
Defendants also argue that, even considering the fee separately, the Court erred in finding
the annual assessment an unconstitutional part of the statute. Defendants urge that, under Smith, the
Court must point to the “clearest proof” that the fee is punitive in order to override otherwise clear
legislative intent to the contrary. Rather, here, defendants contend that there is a rational nonpunitive purpose behind the annual assessment and the fee amount is not in excess of what is
necessary for that purpose. To this end, defendants raise no evidence or arguments that contradict
the Court’s decision and reasoning fully explained in its summary judgment order. As explained
therein, the fact that the legislature helps to offset the costs of monitoring sex offenders does not
mean the assessment does not constitute a fine. The annual assessment is not different than other
fines paid as a punishment where the funds are applied to offset costs, and plaintiffs receive no
benefits from the annual assessment.
Defendants also contend that the Court misapplied the law in analyzing Taylor v. State of
Rhode Island, 101 F.3d 780 (1st Cir. 1996). Defendants suggest that Taylor counsels in their favor,
arguing that the Court should follow Taylor in holding that retroactively imposing a “modest” fee
in order to recoup the costs of a supervisory program is reasonable and nonpunitive. However, as
already discussed, Taylor assessed a fee imposed to offset costs of services provided to offenders
serving parole and probation sentences. 101 F.3d at 783-84. Defendants insist that the principles
applied in Taylor are relevant here. However, here, the fee applies even after registrants have
completed their sentences, and the registrants receive no benefits from their payment. Rather, the
payment of the annual assessment is intended solely to benefit the public by funding a public safety
12
regulatory regime. As such, I remain convinced that the $100 annual fee can only be seen as
punitive.
CONCLUSION
In sum, I remain convinced that the $100 annual assessment imposed by Wis. Stat.
§ 301.45(10) constitutes an unconstitutional ex post facto fine, but that the other constitutional
defects plaintiffs allege are without merit. The parties’ motions for reconsideration fail to show a
need to correct manifest errors of law or fact. While the parties generally re-argue their original
positions on the constitutional issues and raise several points of disagreement with the Court’s
analysis, they have not established errors requiring reconsideration. Accordingly, both plaintiffs’
motion for reconsideration (ECF No. 60) and defendants’ motion for reconsideration (ECF No. 58)
are DENIED.
Dated this
3rd
day of January, 2013.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?