Does 1-6 v. Pleasant Prairie

Filing 50

ORDER signed by Judge J.P. Stadtmueller on 4/17/2017 GRANTING in part and DENYING in part 41 Plaintiffs' Motion for Summary Judgment. Plaintiffs' request for summary judgment as to the liability elements of Counts One and Two GRANTED fo r all Plaintiffs EXCEPT Plaintiff Norgaard; Plaintiff Norgaard is entitled to summary judgment as to the liability elements of Count One only. 44 Plaintiffs' Motion for Leave to File Oversized Brief GRANTED. See Order for further details. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
FRANKLYN HOFFMAN,
KENNETH DERKSON,
JOHNNY WOOTEN, ERIC SANDERS,
MICHAEL O’CONNELL, STEPHEN HART,
WILLIAM JOHNSON, JAMES
NORGAARD, and ALTON ANTRIM,

Case No. 16-CV-697-JPS

Plaintiffs,
v.
VILLAGE OF PLEASANT PRAIRIE,

ORDER
Defendant.

1.

INTRODUCTION
On February 8, 2017, Plaintiffs Franklyn Hoffman (“Hoffman”),

Kenneth Derkson (“Derkson”),1 Johnny Wooten (“Wooten”), Eric Sanders
(“Sanders”), Michael O’Connell (“O’Connell”), Stephen Hart (“Hart”),
William Johnson (“Johnson”), James Norgaard (“Norgaard”), and Alton
Antrim (“Antrim”) filed a motion for summary judgment. (Docket #41).
Defendant Village of Pleasant Prairie (the “Village”) opposed the motion on
March 2, 2017. Plaintiffs replied in support of their motion to March 15, 2017.
For the reasons stated below, Plaintiffs’ motion must be granted in part.2

1

Plaintiffs spell the name “Dirkson” in their Second Amended Complaint,
(Docket #30 at 1, 9-11), and “Derkson” in their summary judgment materials,
(Docket #42 at 13-15). The Court will use “Derkson,” the name he signed to his
affidavit, (Docket #43-8 at 3), and amend the case caption accordingly.
2

Plaintiffs also requested leave to file an oversized brief. (Docket #44).
Though much of the excess of the brief was ultimately unnecessary, the Court will
nevertheless grant the request.

2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides the mechanism for

seeking summary judgment. Rule 56 states that the “court shall grant
summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016).
A “genuine” dispute of material fact is created when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes
all facts and reasonable inferences in a light most favorable to the
non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir.
2016).
3.

RELEVANT FACTS
The material facts are almost entirely undisputed.3 On April 18, 2016,

the Village passed an ordinance regulating residency for child sex offenders
within its borders (the “Ordinance”). Plaintiffs initiated the instant suit on
June 9, 2016, challenging its constitutionality. The Ordinance prohibited child
sex offenders, called “designated offenders” (hereinafter “Designated
Offenders”), from residing in the Village within 3,000 feet of a “prohibited
location.” “Prohibited locations” included “[a]ny school, licensed day-care
center, park, trail, playground, place of worship, athletic field used by

3

The facts discussed below are drawn from the parties’ respective factual
briefs and responses thereto unless otherwise noted. (Docket #45 and #49). The
Court further notes that the Village raises a number of “disputes” in its response
to Plaintiffs’ statement of facts. See, e.g., (Docket #45 at 8). The “disputes” are
inappropriate because they cite no evidence, and are generally pure legal
argument, which is reserved for the parties’ legal memoranda, not factual briefing.
The Court has ignored those attempted “disputes.”

Page 2 of 19

Minors, or any other placed designated by the Village as a place where
Minors are known to congregate.” (Docket #43-1 at 2). The Ordinance also
prevented Designated Offenders from moving into the Village unless they
were already domiciled in the Village at the time of their most recent offense.
Designated Offenders were excluded from any potential violation of the
Ordinance if they resided continuously in a home prior to and after its
effective date. This provision was limited by a ban on renewing rental
agreements with Designated Offenders which would extend for more than
six months beyond the Ordinance’s effective date.
The Ordinance further restricted where Designated Offenders could
live with respect to each other; offenders were banned from residing within
500 feet of each other. The Ordinance applied to all Designated Offenders
without any inquiry into the danger any individual offender posed to the
community. It did, however, contain a grandfather clause. The grandfather
clause allowed Designated Offenders to stay in their residence if a
“prohibited location” was established near them after they took residence. It
also permitted them to live with their close family members, provided those
family members had resided in the otherwise prohibited area for at least two
years.
The Court recognizes that this explanation is somewhat confusing
when stated in prose. To better understand the effect of the Ordinance on
various Designated Offenders, the Court has prepared the following chart:

Page 3 of 19

Nature of Offender

Restriction Imposed

1) Domiciled in the Village at time None, as long as the offender’s
of most recent offense
home complied with the distance2) Lived in the Village when related restrictions
Ordinance was passed
1) Not domiciled in the Village at Permanently
time of most recent offense
Village
2) Not domiciled in Village when
Ordinance was passed

banned

from

the

1) Not domiciled in the Village at Must leave the Village by October
time of most recent offense
18, 2016, and may never return
2) Lived in the Village when
Ordinance was passed
3) Rented property that did not
comply with distance restrictions
1) Not domiciled in the Village at
time of most recent offense
2) Lived in the Village when
Ordinance was passed
3) Owned home or lived with
family

May remain in that property, but
may not move to another home in
the Village. If the offender leaves
their home for more than thirty
days, they may never return.

See (Docket #45 at 4-5).
In passing the Ordinance, the Village prepared a map showing its
projected effect on Designated Offender residency. The map revealed that
more than ninety percent of the Village would be off-limits to Designated
Offenders under the Ordinance. The remaining ten percent was largely nonresidential. Moreover, the interaction between the 3,000 foot prohibited zone
and the rule against Designated Offenders living near one another further
limited the possible dwelling places. Most of the Village’s low-income
housing, which is all that most of these plaintiffs could afford, was excluded.
When enacting the Ordinance, the Village did not obtain or consider
any studies or data regarding the safety risk of allowing Designated
Page 4 of 19

Offenders to live near the various “prohibited locations” identified above, or
near one another. In fact, the Village’s administrator, Michael Pollocoff
(“Pollocoff”), testified that turning child sex offenders into outcasts can create
“more deleterious impacts.” (Docket #45 at 6). The Village also had no
evidence that Designated Offenders domiciled outside the Village at the time
of their last offense posed a greater safety risk than those who were. Pollocoff
stated that the Ordinance’s purpose and goal was to reduce the number of
child sex offenders living in the Village.
All Plaintiffs but Norgaard,4 O’Connell,5 and Hoffman6 were not
domiciled in the Village at the time of their offense, and rented their abodes,
and so fell into the third category from the chart above.7 Each was told that,
in light of the Ordinance’s passage, they had to leave the Village by October
18, 2016. Plaintiffs were variously notified of their need to vacate by a letter

4

Norgaard is the manager of the King’s Motel, where a number of other
designated offenders also live. He did not fear the Ordinance because he was
domiciled in the Village at the time he committed his last offense, and the other
offenders in the Motel would be moving away, eliminating any conflict with the
500-foot restriction. Norgaard thus fell into the first chart category.
5

O’Connell lived at a home owned entirely by his girlfriend and did not pay
rent. He was thus exempt, per the fourth chart category, from having to move out
of the Village, so long as he did not leave the home. He was nonetheless told that
he had to leave the Village. The misunderstanding was corrected during the course
of this litigation, specifically by a letter sent to O’Connell on August 4, 2016.
6

Hoffman lived with his mother rent-free, and so fell into the fourth chart
category. When his mother decided to sell her home and move to senior housing,
Hoffman knew the Ordinance would prevent him from staying in the Village.
7

This fact is undisputed as to Hoffman, Sanders, Antrim, and Wooten. It is
not explicitly stated as to Derkson or Johnson, but the other facts related to those
plaintiffs suggest that they to are covered by the third chart category. In any event,
it is undisputed that Derkson and Johnson were told that they were subject to the
Ordinance and would have to leave the Village.

Page 5 of 19

from the Village’s Chief of Police, by conversations with their probation
officers, or by conversations with other Designated Offenders. Each Plaintiff
has suffered stress as a result of the threat posed by the Ordinance, the
difficulties in attempting to secure new housing, and fear of the consequences
of homelessness.
The Ordinance was repealed, and a new one created in its place, on
September 6, 2016 (the “Amended Ordinance”). The Amended Ordinance
lowered the 3,000 foot prohibited zone to 1,500 feet. This would still cut
Designated Offenders out of over sixty percent of the Village’s land area and
seventy-five percent of its residences. The restriction on Designated
Offenders living near each other was removed entirely, as was the limit on
renewing leases for Designated Offenders living in a prohibited zone. Finally,
the Amended Ordinance stated that it did not apply to a Designated
Offender whose latest conviction was ten or more years prior to them taking
residence in the Village.
4.

ANALYSIS
Plaintiffs’ Second Amended Complaint advances three causes of

action. Count One alleges that the Ordinance violates the Ex Post Facto
Clause in Article I of the Constitution, because “it makes more burdensome
the punishment imposed for offenses committed prior to enactment of the
Ordinance and it applies retroactively[.]” (Docket #30 at 22). Plaintiffs seek
an injunction against its enforcement and money damages on Count One. Id.
at 23. Count Two states that the Ordinance also violates the Equal Protection
Clause of the Fourteenth Amendment because it differentiates between
Designated Offenders who were or were not domiciled in the Village at the
time of their most recent offense, without a rational basis for doing so. Id. at
23-24. Plaintiffs also seek injunctive and monetary relief on Count Two. Id.
Page 6 of 19

at 24. Finally, Count Three seeks a declaratory judgment in favor of
O’Connell on the issue of whether he had to leave the Village. Id. at 24-25; see
supra note 5. Plaintiffs’ instant motion requests judgment on Counts One and
Two as to liability only.8 The Court addresses each claim in turn.
4.1

Ex Post Facto

Initially, the Village contends that Plaintiffs’ ex post facto claim is
mooted by its repeal of the Ordinance. This Court may only exercise its
jurisdiction over live controversies. Campbell-Ewald Co. v. Gomez, 136 S. Ct.
663, 669 (2016). This requirement applies not only at the start of the litigation,
but throughout its entire pendency. Id. An action becomes moot, and must
therefore be dismissed, when “an intervening circumstance deprives the
plaintiff of a personal stake in the outcome of the lawsuit.” Id. (quotation
omitted). A court must take care not to paint over a lawsuit’s claims with a
broad brush, however. A case only becomes moot “when it is impossible for
a court to grant any effectual relief whatever to the prevailing party. As long
as the parties have a concrete interest, however small, in the outcome of the
litigation, the case is not moot.” Id. (citations and quotations omitted).
The Village contends that Plaintiffs’ claims became moot on
September 6, 2016, approximately three months after this action was filed. On

8

Plaintiffs’ opening brief discusses their entitlement to compensatory
damages for the stress and fear they suffered while the Ordinance remained in
force. Confusingly, the brief does not explain why Plaintiffs did so; did Plaintiffs
want the Court to award damages at the summary judgment stage? The Village
believed so, and responded that Plaintiffs’ evidence does not adequately support
their claim for damages at this stage. Plaintiffs’ reply clarifies that they do not seek
an award of damages now, but wish to have their damages evaluated by the jury
at trial. With that clarification, the propriety of Plaintiffs’ damages becomes a
non-issue. Plaintiffs could have prevented confusion for all involved by
appropriately titling their motion as one for partial summary judgment.

Page 7 of 19

that date, the original Ordinance they complained-of in the Second Amended
Complaint was repealed and replaced with the Amended Ordinance, which
either eliminated or limited the effect of the allegedly unlawful provisions.
Plaintiffs concede that this renders moot their requests for injunctive relief.
Enacting the Amended Ordinance does not, however, do anything to address
Plaintiffs’ requests for money damages. Campbell-Ewald (as well as the
Village’s own citations) stands for the proposition that Plaintiffs’ damages
claim, and thus the ex post facto claim as a whole, remains a live controversy.
Fed’n of Adver. Indus. Reps., Inc. v. City of Chicago, 326 F.3d 924, 929 (7th Cir.
2003) (“[A] defendant’s change in conduct cannot render a case moot so long
as the plaintiff makes a claim for damages.”). The Village’s mootness
argument is without merit.
The Village next asserts that the Ordinance did not actually violate the
Ex Post Facto Clause because it did not impose a punishment on Plaintiffs.
The Clause prohibits retroactive punishment by the government, and as
applied here, it restricts how far a governmental entity can go in limiting the
rights of sex offenders. Smith v. Doe, 538 U.S. 84, 92 (2003). The Smith court
began its ex post facto analysis with two questions. First, did the
government, in enacting the restriction, intend to “establish civil
proceedings,” or impose punishment? Id. (internal quotation marks omitted).
If the government intended to punish, the law violates the Ex Post Facto
Clause and the inquiry ends there. Id. The Ordinance’s stated purpose is “not
to impose a criminal penalty” but to instead protect the health and welfare
of the Village’s citizens. (Docket #43-1 at 1). The Court must defer to that
statement of intent. Smith, 538 U.S. at 92-93 (“[C]onsiderable deference must
be accorded to the intent as the legislature has stated it.”).

Page 8 of 19

Nevertheless, even if a law purports to be civil in nature, the Court
“must further determine whether the statutory scheme is “so punitive either
in purpose or effect as to negate [the Village’s] intention to deem it civil.” Id.
at 92 (quotations omitted). The Supreme Court requires “the clearest proof”
to override the government’s stated intention. Id. To assess the punitive
nature of a restriction, courts analyze five factors:
(1)
(2)
(3)
(4)
(5)

Does the law inflict what has been regarded in our
history and traditions as punishment?
Does it impose an affirmative disability or restraint?
Does it promote the traditional aims of punishment?
Does it have a rational connection to a non-punitive
purpose?
Is it excessive with respect to this purpose?

Does #1-5 v. Snyder, 834 F.3d 696, 701 (6th Cir. 2016) (citing Smith, 538 U.S. at
97).
The Village’s argument on this point is brief, conclusory, and fails to
meaningfully address any of these factors. It instead gestures at a few cases
which it contends have ruled in its favor on this issue, and asks the Court to
evaluate and follow those decisions. The Village is mistaken on the law and
the Court’s duties. The most relevant decisions from across the nation reveal
that the Ordinance is nigh unprecedented in its punitive effect. The Court
will not distinguish those opinions where the Village has made no effort to
do so itself.
As to the first factor, the Ordinance banished Plaintiffs from the
Village. Banishment is a traditional form of punishment, and historically
“involved the complete expulsion of an offender from a socio-political
community.” Shaw v. Patton, 823 F.3d 556, 566 (10th Cir. 2016). Unlike many
other laws restricting sex offender residency, the Ordinance did not simply
limit where such people could live. The Ordinance prevented any sex
Page 9 of 19

offenders from moving into the Village and, more importantly, required all
sex offenders in leaseholds to leave within six months after its passage. This
is, in the Court’s view, nothing short of affirmative banishment. Id. at 567-68
(residency provision did not resemble historical banishment because it only
limited sex offender residency, but did not expel them entirely); Doe v. Miller,
405 F.3d 700, 719 (8th Cir. 2005) (same). Not all Plaintiffs are in the same
position on this issue, however. Norgaard, O’Connell, and Hoffman were not
(properly) subject to the banishment provision of the Ordinance. However,
as discussed below, this difference does not change the outcome on this
claim.
Even had it tried, the Village could not reasonably contest the second
factor. The Ordinance imposed severe restraints on Designated Offenders,
limiting their residence to ten percent of the Village’s land area, an area
which is itself largely non-residential. See Doe v. Miami-Dade County, Fla., 846
F.3d 1180, 1185 (11th Cir. 2017) (this inquiry focuses on the “‘how the effects
of the [Ordinance] are felt by those subject to it,’” and these offenders alleged
homelessness as a result of the county’s residency ordinance) (quoting Smith,
538 U.S. at 99-100). The third factor is likewise present, though it is of limited
importance because punishment goals often overlap legitimate civil
regulatory goals. Snyder, 834 F.3d at 704. Still, the Ordinance advances the
traditional punishment aims of incapacitation, in keeping Designated
Offenders segregated to tiny zones of the community; retribution, by
imposing its restrictions based solely on Plaintiffs’ prior offense conduct; and
deterrence, in attempting to keep Designated Offenders away from children
to deter recidivism. Id.
The fourth and fifth factors are usually considered together, for the
less rational a restriction’s connection to its stated purpose, the more
Page 10 of 19

excessive it will be in addressing that purpose. See Smith, 538 U.S. at 104-05;
Snyder, 834 F.3d at 704-05; Miller, 405 F.3d at 721-723. This is the most
important consideration in the ex post facto analysis. Smith, 538 U.S. at 102.
Further, “to avoid a[n] [excessive] punitive effect, a statute imposing a
particularly harsh disability or restraint must allow an individualized
assessment. An individualized assessment helps to ensure that a statute’s
particularly harsh disability or restraint is rationally related to a non-punitive
purpose.” Shaw, 823 F.3d at 575; Weems v. Little Rock Police Dep’t, 453 F.3d
1010, 1017 (8th Cir. 2006) (“Unlike the Iowa law [at issue in Miller], the
Arkansas statutory plan calls for a particularized risk assessment of sex
offenders, which increases the likelihood that the residency restriction is not
excessive in relation to the rational purpose of minimizing the risk of sex
crimes against minors.”).
Decisions from other circuits provide a useful contrast to the
Ordinance. In Miller, expert testimony was received on the effect of a 2,000foot residency restriction on sex offender recidivism. Miller, 405 F.3d at 72223. While this testimony was not definitive as to the propriety of that distance
as compared to any others, the Eighth Circuit held that it supplied a
sufficient rational basis connected to the legislature’s non-punitive purpose.
Id. In Miami-Dade, the subject ordinance established a 2,500-foot exclusion
zone for schools, with exceptions when “(1) [t]he sexual offender or sexual
predator established a residence prior to the effective date of th[e]
[O]rdinance; (2) [t]he sexual offender or sexual predator was a minor when
he or she committed the sexual offense and was not convicted as an adult;
and (3) [t]he school was opened after the sexual offender or sexual predator
established the residence.” Miami-Dade, 846 F.3d at 1183 (internal quotation
marks omitted). The Miami-Dade plaintiffs alleged that this ordinance
Page 11 of 19

violated the Ex Post Facto Clause because it did not include an individualized
risk assessment, it applied to an offender for life, and was passed without
any evidence connecting the restriction to an improvement on safety or
recidivism concerns. Id. at 1185-86. The Eleventh Circuit found that these
assertions stated an ex post facto cause of action. Id. Finally, Duarte highlights
the importance of an efficacious grandfather clause, which in that case
allowed offenders to stay in their current homes after the subject ordinance
was passed. Duarte v. City of Lewisville, 136 F. Supp. 3d 752, 781-82 (E.D. Tex.
2015). The Duarte ordinance also contained “multiple affirmative defenses
that, if argued and proven, exempt the child sex offender from the residency
restrictions.” Id. at 782.9
The Ordinance goes further than any these examples. The Ordinance
bans Designated Offenders from the Village without any individualized
inquiry into their risk to the community. In a similar vein, it did not offer any
method for a Designated Offender to obtain an exemption, even in limited
circumstances. Like the Miami-Dade ordinance, the Ordinance’s banishment

9

The Village cites two Wisconsin appellate court opinions upholding sex
offender residency restrictions. Neither case has much persuasive value. Menomonee
Falls v. Ferguson decided whether an offender was protected by an ordinance’s
grandfather clause, and said nothing of the constitutionality of the ordinance. See
generally 799 N.W.2d 473 (Wis. Ct. App. 2011). City of South Milwaukee v. Kester
actually addressed the ex post facto issue. 830 N.W.2d 710 (Wis. Ct. App. 2013).
Kester found that the ordinance passed muster under the Ex Post Facto Clause
because it did not banish the plaintiff sex offender and, even without an individual
risk assessment, the city was entitled to make a reasonable categorical judgment
that all sex offenders are dangerous to the community. Id. at 719-21. Kester is
unpersuasive for two reasons. First, the Ordinance is different from Kester’s
ordinance because it includes an expulsion provision. Second, in line with the
above-cited federal precedent, this Court disagrees with Kester to the extent that a
broad, evidence-free assumption about sex offenders (Kester mentions no data or
studies on the dangerousness of such persons in the community) is sufficient to
make a regulation non-punitive.

Page 12 of 19

applies to Designated Offenders for life. Unlike Duarte, the Ordinance’s
grandfather clause was of limited help to Plaintiffs, because for most of them,
it only permitted them to remain until October 2016. Most importantly, the
Village has admitted that the Ordinance was based on its own conjecture
about the dangers posed by sex offenders. No data or studies on the matter
were considered in passing the Ordinance.
The lack of evidence eliminates the possibility that the Village’s action
was rational. In Snyder, the Sixth Circuit faced a comprehensive sex offender
registration and residency statute. Snyder, 834 F.3d at 697-98. The court found
that the statute was not rationally related to the purpose of reduced sex
offender recidivism and public safety. Id. at 704-05. Though the Supreme
Court in Smith stated that recidivism rates among sex offenders are
“frightening and high,” the Snyder court found that support for the
proposition was lacking in empirical studies. Id. at 704. It specifically noted
that “nothing . . . in the record suggests that the residential restrictions have
any beneficial effect on recidivism rates.” Id. at 705. Snyder found no evidence
that “the difficulties the statute imposes on registrants are counterbalanced
by any positive effects. Indeed, Michigan has never analyzed recidivism rates
despite having the data to do so.” Id.
The Village fell into the same trap as the Michigan legislature. The
Village could have sought objective evidence to support the Ordinance’s

Page 13 of 19

severe restrictions but chose not to.10 Plaintiffs were required to come
forward with “the clearest proof” that the Ordinance was intended as
punishment. Smith, 538 U.S. at 92. If the Village had even a sliver of factual
material to support the stated goals of the Ordinance, the outcome of this
claim would likely be different. As it stands, however, the Court has no
choice but to find that the restrictions imposed by the Ordinance are not
rationally connected to its purposes.
The Court concludes that, in balancing the Smith factors, Plaintiffs
have produced sufficient proof that the Ordinance’s stated non-punitive
purpose is overborne by its punitive effects. The Ordinance therefore
violated the Ex Post Facto Clause and Plaintiffs are entitled to summary
judgment on that claim. This result is clearly true for the plaintiffs who were
subject to banishment under the Ordinance, namely Derkson, Wooten,
Sanders, Hart, Johnson, and Antrim. The Ordinance would not have
necessarily banished Hoffman, O’Connell, and Norgaard, for various
reasons. See supra notes 3-5. As to those three, the lack of banishment makes
this case much closer to the others cited above, where the law in question

10

In fact, the Village apparently had evidence that the Ordinance could be
counterproductive. Pollocoff stated that the Ordinance could have a negative effect
on sex offender recidivism and community safety by making them outcasts. Snyder
discussed the same issue:
In fact, one statistical analysis in the record concluded that
laws such as SORA actually increase the risk of recidivism, probably
because they exacerbate risk factors for recidivism by making it hard
for registrants to get and keep a job, find housing, and reintegrate
into their communities. See [J.J. Prescott & Jonah E. Rockoff, Do Sex
offender Registration and Notification Laws Affect Criminal Behavior?, 54
J.L. & Econ. 161 (2011)].
Snyder, 834 F.3d at 704-05 (emphasis in original).

Page 14 of 19

withstood Ex Post Facto Clause review. The Court has not differentiated
between these sets of plaintiffs, however, because the Village has not argued
that it should. The Court will not craft appropriate arguments for a litigant
and, particularly in the case of represented parties, will assume that the
omission of apparently relevant argument was a strategic choice rather than
mere oversight. John v. Barron, 897 F.2d 1387, 1393 (7th Cir. 1990) (“This court
is not obligated to research and construct legal arguments open to parties,
especially when they are represented by counsel as in this case.”); Gold v.
Wolpert, 876 F.2d 1327, 1333 (7th Cir. 1989).
4.2

Equal Protection

The Village first argues that Plaintiffs lack standing to pursue an equal
protection claim. The standing doctrine requires that a party must actually
have a interest in a case to invoke federal jurisdiction. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). Though there are many nuances to standing,
its application here is relatively simple. As raised by the Village, the standing
doctrine requires that Plaintiffs must have suffered a concrete injury and
favorable decision in the case must offer redress for their injury. Id. at 560-61.
The Village argues that Plaintiffs were grandfathered into the Amended
Ordinance, and with the repeal of the original Ordinance, they now lack
standing to maintain an equal protection claim.
The Village’s argument misses the mark in two respects. First, as with
the mootness issue, the Village focuses on the ameliorative effect of the
Amended Ordinance. This is not the relevant inquiry. Plaintiffs have
standing to remedy a past wrong, namely the constitutionally violative
original Ordinance, regardless of whether they are suffering an injury today.
Second, even when one’s focus is properly directed to the original Ordinance,
Plaintiffs were not grandfathered in as the Village suggests. As discussed
Page 15 of 19

above, most of the plaintiffs were subject to banishment within six months
of the Ordinance’s passage. Plaintiffs further argue that O’Connell and
Hoffman suffered stress because they knew they would have to leave the
Village if they ever left their current homes. As before, the Village does not
differentiate between each set of plaintiffs. The Court finds, then, that all
Plaintiffs but Norgaard have standing because they suffered injury by way
of the Ordinance. Norgaard is different because Plaintiffs do not attempt to
argue that he suffered a violation of his equal protection rights. (Docket #48
at 4-5). The Court must, therefore, deny summary judgment to him on this
claim.
The Village next attacks the substance of Plaintiffs’ equal protection
claim. The Fourteenth Amendment’s Equal Protection Clause “commands
that no State shall deny to any person within its jurisdiction the equal
protection of the laws, which is essentially a direction that all persons
similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985) (quotation omitted). Usually, laws pass
muster under the Equal Protection Clause “if the classification drawn by the
statute is rationally related to a legitimate state interest.” Id. at 440. However,
when a statute burdens a person’s fundamental constitutional rights, courts
apply a higher level of scrutiny. See Atty. Gen. of N.Y. v. Soto-Lopez, 476 U.S.
898, 904 (1986).
The parties dispute whether Plaintiffs are members of a protected
class, such that the Court would need to give increased scrutiny to the
Ordinance. The Court need not wade into that fray, as the Ordinance fails to
pass even the lesser threshold of rationality. To prove an equal protection
claim under rational basis review, Plaintiffs must show: “(1) the [Village]
intentionally treated [them] differently from others similarly situated, (2) the
Page 16 of 19

[Village] intentionally treated [them] differently because of [their]
membership in the class to which [they] belonged, and (3) the difference in
treatment was not rationally related to a legitimate state interest.” Smith v.
City of Chicago, 457 F.3d 643, 650-51 (7th Cir. 2006). “Under this lenient
standard,” the Seventh Circuit instructs, a law “must be upheld if [the Court]
can reasonably conceive of any justification for it.” Shaw v. Smith, 206 F.
App’x 546, 548 (7th Cir. 2006).
Plaintiffs contend that the Ordinance violates their equal protection
rights because it treats certain Designated Offenders differently from others
without reason. Those in the first chart category, who were domiciled in the
Village at the time of their last offense, were allowed to remain in the Village.
Those in the other three chart categories, who were not so domiciled, were
variously blocked from moving into the Village, compelled to leave in a short
time frame, or forced to remain in their current home forever if they wished
to stay in the Village. The Village has admitted that it has no evidence that
the difference between these groups—domicile at the time of their last
offense—has any bearing on their safety risk to the community.
The Village makes no attempt to address this claim. Instead, it appears
to believe that Plaintiffs advance an equal protection claim based on their
status as sex offenders versus non-sex offenders. The Village states its
position as follows: “The Village of Pleasant Prairie certainly has a rational
basis for protecting children against the risks of recidivism of convicted sex
offenders.” (Docket #46 at 12). This is not the relevant question, and because
of its misunderstanding of Plaintiffs’ claim, the Village offers almost no
relevant argument in opposition to the actual claim presented.
Even so, the Court must uphold a law if it “can reasonably conceive
of any justification for it.” Shaw, 206 F. App’x at 548. Thus, the Court would
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likely be compelled to find the Ordinance constitutional if the Village had
offered any evidence providing such a justification, even as late as its briefing
on the instant motion. It did not, and this failure leaves the Court no choice
but to conclude that the Ordinance violated Plaintiffs’ equal protection rights
in making an irrational domicile-based distinction between Designated
Offenders. This comports with the purpose of the Equal Protection Clause.
The “bare . . . desire to harm a politically unpopular group cannot constitute
a legitimate governmental interest.” U.S. Dep’t of Agric. v. Moreno, 413 U.S.
528, 534 (1973). In light of Pollocoff’s comments, and the lack of evidence
supporting the Ordinance’s restrictions, it appears this is precisely what
motivated the Village’s action.
5.

CONCLUSION
In light of the foregoing, the Court grant Plaintiffs’ request for

summary judgment as to the liability elements of Counts One and Two of
their Second Amended Complaint, for all of the plaintiffs save Norgaard.
Norgaard is entitled to summary judgment on Count One but not Count
Two. Plaintiffs’ damages on those counts will be determined by the jury. The
Court treats Plaintiffs’ claims for injunctive relief as abandoned. This matter
remains set for a pretrial conference on May 9, 2017, and a jury trial
beginning on May 15, 2017.
Accordingly,
IT IS ORDERED that Plaintiffs’ motion for summary judgment
(Docket #41) be and the same is hereby GRANTED in part and DENIED in
part in accordance with the terms of this Order; and
IT IS FURTHER ORDERED that Plaintiffs’ motion to file an
oversized brief (Docket #44) be and the same is hereby GRANTED.

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Dated at Milwaukee, Wisconsin, this 17th day of April, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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