Opinion
Case No. 20-C-1100
2022-07-22
Peter NELSON, Plaintiff, v. TOWN OF PARIS, Defendant.
Adele D. Nicholas, Law Office of Adele D. Nicholas, Chicago, IL, Mark G. Weinberg, Law Office of Mark G. Weinberg, Chicago, IL, for Plaintiff. Dustin T. Woehl, Thomas A. Cabush, Kasdorf Lewis & Swietlik SC, Milwaukee, WI, for Defendant.
Adele D. Nicholas, Law Office of Adele D. Nicholas, Chicago, IL, Mark G. Weinberg, Law Office of Mark G. Weinberg, Chicago, IL, for Plaintiff.
Dustin T. Woehl, Thomas A. Cabush, Kasdorf Lewis & Swietlik SC, Milwaukee, WI, for Defendant.
DECISION AND ORDER
LYNN ADELMAN, United States District Judge
Plaintiff Peter Nelson alleges that a town ordinance creating a sex-offender residency restriction violates both the Ex Post Facto Clause and the substantive component of the Fourteenth Amendment's Due Process Clause. Before me now are the parties’ cross-motions for summary judgment.
I. BACKGROUND
The Town of Paris is a small rural community in Kenosha County. It has a population of 1,689 people, is about 36 square miles in size, and has a density of 48.2 people per square mile. (Pl. Resp. to Def. Prop. Finding of Fact ("PFOF") ¶¶ 59, 68.) Between 65% and 75% of the Town's land is devoted to agricultural uses. (Id. ¶¶ 53, 54.) The Town does not have its own police force or municipal court and relies on the Kenosha County Sheriff for policing. (Id. ¶ 51.)
The Town has an ordinance restricting where convicted sex offenders may reside. The Town enacted a version of this ordinance in 2008 and revised it in 2018. (Pl. PFOF ¶ 64.) The amended ordinance applies to any person who is required to register as a sex offender under Wisconsin law "as a result of being a repeat sexual offender, sexual offender who has used physical violence in committing an offense or who has preyed upon children." Code of Ordinances, Town of Paris, Wisconsin (hereinafter "Ord.") § 10-20(2), ECF No. 31-1. The ordinance provides that a sex offender may not reside within 6,500 feet of a "protected location" or within 6,500 feet of another sex offender. Id. § 10-21(1). "Protected Location" is defined as "any School Property, Day Care Center, Library, Park, Recreational Trail, Playground, Athletic Fields used by children, Place of Worship, Swimming Pool, any specialized school for children, including, but not limited to, a gymnastics academy, dance academy or music school; any other place [designated by the Town] as a place where children are known to congregate." Id. § 10-20(6). Some of the protected locations are further defined. For example, "Library" is defined as "any library that is held open for use by the public where such library includes a collection of material specifically intended for use by children." Id. § 10-20(6)(d).
The ordinance has several exceptions. First, it contains a grandfathering provision stating that it does not apply to a residence that a sex offender had established before the effective date of the ordinance. Ord. § 10-21(6)(a). Second, it exempts minors who are not required to register under state law. Id. § 10-21(6)(b). Third, it provides that a sex offender is not required to move if a protected location opens within 6,500 feet of a residence that the offender had already established. Id. § 10-21(6)(c). Finally, it provides that an offender may reside within 6,500 feet of a protected location if that residence is also the residence of certain of the offender's family members and those family members had established the residence at least two years before the offender moved in. Id. § 10-21(6)(d).
The ordinance also contains an appeal procedure that allows the offender to seek a personal exemption. Id. § 10-25. An appeal is heard by an "Appeals Board" created by the ordinance, which is composed of three members. Those members initially consisted of three Town Supervisors, but the ordinance provides that the Town Board is to eventually appoint three Town residents as board members. If an appeal is filed, the Appeals Board must "hold a hearing ... to conduct an individual risk assessment in each case." Id. § 10-25(4). The ordinance directs the Appeals Board to "consider the specific facts and circumstances of each applicant and determine whether the applicant presents a threat to public safety if he or she resides at that proposed location." Id. The ordinance then lists a series of factors for the Appeals Board to consider: the circumstances surrounding the offense, the relationship of the offender and victim, the presence or use of force, enticement, the need to protect the victim or similarly situated individuals, the current dangerousness of the offender, the proximity in time from the original offense, any offenses or probation violations committed since the original offense, time out of incarceration, current supervision status, counseling and treatment history, the offender's credibility, remorse, the proximity of a proposed residence to a child safety zone, the support network of the offender near the proposed residence, and alternative options for housing. The outcome of the appeal is determined by majority vote. Id. § 10-25(5).
As of April 2021, there were ten protected locations that created exclusion zones within the Town. (ECF No. 31-5 & 31-19.) Further, as of that date, three sex offenders legally resided in the Town. (ECF No. 31-5.) The combined effect of the 6,500-foot exclusion zones (those around protected locations and those around other sex offenders) was to preclude non-grandfathered and non-exempted sex offenders from taking up residence in 354 of the Town's 605 residential units. (Pl. PFOF ¶ 20 & ECF No. 31-9.) This left 251 units, or 41.4% of the Town's housing stock, available to sex offenders who were required to comply with the Town's residency restrictions.
In 1993, the plaintiff was convicted of sexually assaulting his daughter, who was a minor at the time. He was sentenced to five years’ imprisonment and 20 years’ supervision. He was released from supervision in 2018.
In June 2017, the plaintiff and his wife moved into the Bristol Motel, which is in the Town of Paris, as long-term renters. The Bristol Motel has 12 units, some of which are used for nightly rentals and some of which are used for longer-term leases. Evidence in the record indicates that, prior to the events that gave rise to this case, the Wisconsin Department of Corrections viewed the Bristol Motel, along with other motels in Kenosha County that offered long-term rentals, as convenient places to house sex offenders that were being released into the community. (Dep. of John Holloway at 35:12–36:18; Dep. of Sarah Hutchings at 86:5–89:14.) Three such motels are located within the borders of the Town of Paris.
In June 2019, after the plaintiff had been living at the Bristol Motel for a few years, the Town sent him a letter in which it informed him that he was violating the Town's residency restriction. The Bristol Motel is not located within 6,500 feet of a protected location. However, at the time that the plaintiff resided at the motel, another sex offender lived within 6,500 feet of the motel. In fact, this other sex offender lived within 500 feet of the motel. (Town PFOF ¶ 37.) The Town's letter informed the plaintiff that he could file an appeal under the ordinance's appeal procedure and seek an exemption that would allow him to continue to reside at the Bristol Motel. The letter further advised the plaintiff that, if he continued to live at the motel without receiving an exemption, he would be subject to a fine of $500 per day, which is the penalty prescribed by the ordinance. See Ord. § 10-24.
Although the plaintiff established his residency at the Bristol Motel in 2017, prior to the effective date of the 2018 amendments to the ordinance, his residence at the motel was also prohibited by the prior version of the ordinance. See Pl. PFOF ¶ 64. The parties apparently agree that this means that the plaintiff was not exempt from the residency restriction under the amended ordinance's grandfather clause.
In response to the Town's letter, the plaintiff filed an appeal. The Town's Appeal Board held a hearing on the plaintiff's request for an exemption and denied the request in a written order dated January 28, 2020. (ECF 26-16.) The Appeal Board gave eleven reasons for denying his request: (1) the plaintiff had other residential options, including a property he owned in Racine; (2) the plaintiff had the financial wherewithal to purchase another residence; (3) the plaintiff lacked credibility; (4) a playground is located on the Bristol Motel property; (5) the plaintiff lived at the Bristol Motel for two-and-a-half years without registering under the Town's sex-offender registry ordinance; (6) the plaintiff told Town staff that he planned to move but did not make efforts to move; (7) the motel caters to transients, which impacted the plaintiff's "stability" and gave him access to children staying at the motel; (8) the plaintiff's "support system" was not located within the Town of Paris; (9) the owners of the motel had children who resided in the motel; (10) the motel is a bus stop for the Paris school district; and (11) the plaintiff's criminal record demonstrated that he had a history of not following rules and laws. (Id. )
The Appeal Board's written order notified the plaintiff that he was required to terminate his residence at the Bristol Motel within 30 days. The order also notified the plaintiff that he had a right to seek review of the order by the Circuit Court of Kenosha County under state-law certiorari procedures. The plaintiff, however, did not seek such review.
The plaintiff did not move out of the Bristol Motel within 30 days of the Appeal Board's decision in January 2020. He continued to reside at the motel until at least June 17, 2020. On that date, the Kenosha County Sheriff's Department issued the plaintiff a $500 citation for continuing to reside at the motel in violation of the ordinance. (Pl. PFOF ¶ 9.)
When the plaintiff learned that the Town would require him to leave the Bristol Motel, he tried to find alternative housing in the Town or in the surrounding rural municipalities, such as Bristol. (Dep. of Peter Nelson at 91:14–91:21.) However, he found it "very hard to find a place" because all the rural municipalities in the area had "restrictive" sex-offender residency ordinances. (Id. at 91:21–92:7.) The plaintiff testified at his deposition that he "didn't look a lot" because he felt that, with the ordinances being so restrictive, any efforts he made would have been "futile." (Id. at 94:4–94:13.) However, he did look to see if there were rentals available. (Id. at 94:14–94:19.)
In June 2020, after the plaintiff was ticketed for violating the residency restriction, he moved into a single-family home in the City of Racine that is owned by his wife. However, the plaintiff dislikes urban living and would prefer to live in the Town of Paris. (Nelson Dep. at 109:13–109:24.) He testified that, but for the ordinance, he would continue to live at the Bristol Motel. (Id. at 114:16–114:21.)
The plaintiff commenced the present lawsuit on July 19, 2020, under 42 U.S.C. § 1983. He seeks to have the ordinance declared unconstitutional under the Ex Post Facto Clause and the substantive component of the Fourteenth Amendment's Due Process Clause. He seeks permanent injunctive relief as well as nominal and compensatory damages. The parties have filed cross-motions for summary judgment on the merits of the plaintiff's constitutional challenges, which I address below. II. DISCUSSION
A. Summary Judgment Standard
Summary judgment is required where "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). When considering a motion for summary judgment, I view the evidence in the light most favorable to the non-moving party and must grant the motion if no reasonable juror could find for that party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
B. Ex Post Facto
Article I, section 10, clause 1 of the United States Constitution prohibits states from passing ex post facto laws—those which "retroactively alter the definition of crimes or increase the punishment for criminal acts." Hope v. Comm'r of Ind. Dep't of Corr. , 9 F.4th 513, 530 (7th Cir. 2021) (quoting Cal. Dep't of Corr. v. Morales , 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) ). Laws that transgress the Ex Post Facto Clause are both retroactive and penal. Id. The plaintiff thus has the burden of showing that the Town's ordinance has both characteristics.
A natural starting point for evaluating the plaintiff's Ex Post Facto claim would be to assess whether the Town's ordinance is retroactive. However, there is uncertainty in the caselaw about the status of the retroactivity element in the Seventh Circuit. In two cases, the Seventh Circuit has held that if a law "merely creates new, prospective legal obligations based on the person's prior history," then it cannot be retroactive, even if the new legal obligations did not exist at the time of the person's criminal offense. United States v. Leach , 639 F.3d 769, 773 (7th Cir. 2011) ; see also Vasquez v. Foxx , 895 F.3d 515, 520 (7th Cir. 2018). Since these cases were decided, however, the Seventh Circuit, sitting en banc , has noted that its approach to retroactivity conflicts with that taken by other circuits. Hope , 9 F.4th at 530. Nonetheless, the en banc court declined to reexamine its approach to retroactivity in Hope because it was able to resolve the case on the ground that the law in question was not punitive. Id. Judge Scudder filed a concurring opinion in which he disagreed with the majority's decision to bypass the retroactivity question. Id. at 535 (Scudder, J., concurring). He noted that the Seventh Circuit's caselaw on retroactivity needed a "course correction" and urged the full court to make that correction in Hope . Id.
More recently, a panel of the Seventh Circuit has been asked to overrule Leach and Vasquez , see Koch v. Vill. of Hartland , 43 F.4th 747 (7th Cir. 2022), which the panel may do if it circulates its opinion to the full court and no judge in regular active service requests rehearing en banc. See Cir. Rule 40(e). Plaintiff Nelson asks me to refrain from deciding the retroactivity issue until the Seventh Circuit decides the appeal in Koch . (ECF No. 48 at 6 of 23.) In light of the plaintiff's request, and because (as discussed below) this case can be resolved on the ground that the ordinance is not punitive, I will bypass the issue of retroactivity and discuss only the punitive prong of the Ex Post Facto analysis.
In Smith v. Doe , 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the Supreme Court outlined an approach to assessing whether a sex-offender registry law is punitive. The Seventh Circuit has applied that approach to sex-offender residency restrictions like the one in the present case. Vasquez , 895 F.3d at 520–21. Under Smith , the ultimate question is "whether the legislature meant the statute to establish ‘civil’ proceedings." 538 U.S. at 92, 123 S.Ct. 1140 (quoting Kansas v. Hendricks , 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) ). "If the intention of the legislature was to impose punishment, that ends the inquiry." Id. But even if the legislature intended to create a regulatory scheme that is "civil and nonpunitive," the court must take the additional step of examining "whether the statutory scheme is ‘so punitive either in purpose or effect as to negate [the State's] intention to deem it civil.’ " Id. (quoting Hendricks , 521 U.S. at 361, 117 S.Ct. 2072 ). Only the "clearest proof" can override the legislature's stated intent and "transform what has been denominated a civil remedy into a criminal penalty." Id. (quoting Hudson v. United States , 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) ).
In the present case, the plaintiff concedes that the Town's stated intent in enacting the residency ordinance was to create a civil regulatory scheme rather than additional criminal punishment for sex offenders. (ECF No. 32 at 39–40 of 73, n.28.) Indeed, the ordinance has a preamble in which the Town disclaims any punitive intent and states that the purpose of the law is to protect the health, safety, and welfare of the citizens of the Town. Ord. § 10-19(3). Thus, the plaintiff may succeed on his Ex Post Facto challenge only by producing the "clearest proof" that the effects of the ordinance render it punitive.
In analyzing the effects of the ordinance, I must apply five factors that, in Smith , the Supreme Court borrowed from Kennedy v. Mendoza–Martinez , 372 U.S. 144, 168–169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). See Smith , 538 U.S. at 97, 123 S.Ct. 1140. These five factors are: (1) whether the law's burden "has been regarded in our history and traditions as a punishment"; (2) whether the law imposes "an affirmative disability or restraint"; (3) whether the law "promotes the traditional aims of punishment"; (4) whether the law "has a rational connection to a nonpunitive purpose"; and (5) whether the law "is excessive with respect to [its nonpunitive] purpose." Id. According to the Seventh Circuit, the Supreme Court "assigned no particular priority or weight to any of these factors," and the factors "are ‘neither exhaustive nor dispositive’ but merely ‘relevant.’ " Vasquez , 895 F.3d at 521. In Smith , the Court described the factors as "useful guideposts." 538 U.S. at 97, 123 S.Ct. 1140 (quoting Hudson , 522 U.S. at 99, 118 S.Ct. 488 ).
1. Likeness to Traditional Punishment
The plaintiff contends that the ordinance imposes the traditional punishment of "banishment" from a community. However, the Seventh Circuit has repeatedly rejected claims that sex-offender residency restrictions amount to banishment. Hope , 9 F.4th at 531 ; Vasquez , 895 F.3d at 521. The Seventh Circuit has reached this conclusion even with respect to laws that make it "difficult[ ]" for sex offenders to find "suitable" housing "in their neighborhoods." Vasquez , 895 F.3d at 522. And the Town's residency restriction does not approximate the traditional punishment of banishment any more than the laws at issue in Hope and Vasquez . The ordinance does not completely ban sex offenders from the Town. Even with the restrictions in place, as of April 2021, more than 40% of the Town's housing stock was available to sex offenders who had not already established legal residences in the Town. At most, the Town's ordinance makes it difficult for sex offenders who wish to move to the Town to find suitable housing. Under cases such as Vasquez , such difficulty does not constitute banishment.
The plaintiff contends that the Town's ordinance is more restrictive than the laws upheld in Hope and Vasquez . He points out that the law is triggered by certain sex offenses that do not involve minors, that the ordinance imposes exclusion zones around kinds of locations that are not used exclusively by children, that the Town's exclusion zones (6,500 feet) are bigger than the zones at issue in Hope (1,000 feet) and Vasquez (500 feet), and that the Town imposes exclusion zones around other sex offenders, not just protected locations. But even with these additional restrictions, more than 40% of the Town's housing stock remains available to sex offenders who wish to move there. The plaintiff has not shown that the restrictions in Hope and Vasquez , which again, made it "difficult[ ]" for sex offenders to find housing in their communities, Vasquez , 895 F.3d at 522, left sex offenders with significantly greater residential opportunities than the opportunities available to them in the Town of Paris.
Moreover, the plaintiff ignores the ways that the Town's ordinance is less restrictive than the laws at issue in Hope and Vasquez . The law in Vasquez required a sex offender to leave his or her established residence whenever a new protected location sprang up within 500 feet of the residence. 895 F.3d at 522. Indeed, one of the plaintiffs in Vasquez was forced out of his home and his child's school district when a day-care home opened near the residence that he had lived in for three years. Id. at 520. In contrast, the Town's ordinance has a grandfathering provision that allows a sex offender to stay in an established residence even when a new protected location opens within 6,500 feet. Ord. § 10-21(6)(c). Further, the law in Hope limited the employment opportunities of certain sex offenders and precluded others from entering a school. 9 F.4th at 520. In contrast, the Town's ordinance only limits where sex offenders may reside. Finally, unlike the laws at issue in Hope and Vasquez , the Town's ordinance has an appeal procedure that allows any sex offender to seek approval to reside at a location that would otherwise fall within the exclusion zones. Given these differences, there is no objective basis on which to conclude that Paris's ordinance is more restrictive than the laws at issue in Hope and Vasquez . The laws may differ in various respects, but these differences do not allow me to conclude that Paris's ordinance creates the punishment of banishment while the laws in Hope and Vasquez do not.
The ordinance does preclude sex offenders from participating in a holiday event involving children under eighteen, see Ord. § 10-21(3), but this restriction is not nearly as severe as the limitations on employment and entering a school at issue in Hope .
The plaintiff also contends that the Town's residency restrictions amount to banishment because one of the Town's purposes in adopting the ordinance was to prevent sex offenders from residing in its three motels, which the plaintiff describes as the only "long term, dense housing" in the Town. (ECF No. 43 at 13 of 58.) It is true that the Town Chairperson testified at his deposition that one impetus for the creation of exclusion zones around other sex offenders was the Wisconsin DOC's practice of allowing multiple sex offenders to reside at the Town's three motels. (Holloway Dep. at 35:12–37:1.) He testified that the Town created the exclusion zones, in part, to prevent a concentration of sex offenders in particular neighborhoods. (Id. at 37:2–37:18.) This testimony does not suggest that the Town intended to banish sex offenders. The Town did not even banish sex offenders from the three motels. None is located within 6,500 of a protected location, and only one is located within 6,500 of a sex offender who does not reside at the motel. (See ECF No. 31-5.) As of April 2021, there were no sex offenders residing in one of the motels (the Oasis Motel), and thus the plaintiff could have moved into that motel if there had been a vacancy. (Id. )
The plaintiff suggests that the Town's limiting the number of sex offenders who can reside at a motel effectively bans them from the Town because the Town is mostly agricultural, and sex offenders generally cannot afford to purchase farms. Relatedly, the plaintiff contends that the Town's exclusion zones place most of the Town's non-agricultural parcels off limits to sex offenders. The plaintiff's argument based on the parcels available to sex offenders being predominantly agricultural is not persuasive. The Town in general is predominantly agricultural, and the plaintiff has not demonstrated that the percentage of parcels available to sex offenders is significantly more agricultural than the parcels placed off limits. Instead, the plaintiff merely eyeballs a map of available parcels and estimates that they are mostly agricultural and that the excluded zones contain smaller residential parcels. (Pl. PFOF ¶ 23.) But when I look at the map, I see many smaller properties outside the exclusion zones that appear to be in denser residential neighborhoods. For example, an area on the east side of the Town, on and around 136th Avenue, looks like dense residential housing and is not within exclusion zones. Accordingly, I cannot conclude that the Town has attempted to place off limits the only Town properties that a sex offender could realistically rent or purchase.
In support of his claim that the Town's ordinance imposes banishment, the plaintiff cites three cases that have invalidated sex-offender laws based in part on the court's conclusion that the law approximated banishment. Two of the cases are from outside the Seventh Circuit, namely, the Sixth Circuit's opinion in Does #1–5 v. Snyder , 834 F.3d 696 (6th Cir. 2016) and the California Supreme Court's decision in In re Taylor , 60 Cal. 4th 1019, 184 Cal.Rptr.3d 682, 343 P.3d 867 (2015). As I have already explained above, the Seventh Circuit's approach to banishment precludes me from finding that the Town's residency restrictions create the punishment of banishment. For this reason, even if Snyder and Taylor supported the plaintiff's case, I could not rely on them. Moreover, in Vasquez , the Seventh Circuit distinguished Snyder on the ground that the law at issue there was far more restrictive than just a residency restriction—it created "a byzantine code governing in minute detail the lives of the state's sex offenders." 895 F.3d at 522 n.4 (quoting Snyder ). For the same reason, Snyder is distinguishable from the present case, which involves only a residency restriction. The third case on which the plaintiff relies, Hoffman v. Village of Pleasant Prairie , 249 F. Supp. 3d 951 (E.D. Wis. 2017), was decided by another judge of this court. However, that case is easily distinguishable because the law at issue expressly forbade nearly all sex offenders from living within the village. Id. at 958 ("Unlike many other laws restricting sex offender residency, the Ordinance did not simply limit where such people could live. The Ordinance prevented any sex offenders from moving into the Village and, more importantly, required all sex offenders in leaseholds to leave within six months after its passage."). In the present case, as I have discussed, more than 40% of the residential units in the Town of Paris are available to sex offenders, and therefore sex offenders have not been banished from the Town.
In addition to banishment, the plaintiff argues that the ordinance is akin to parole or probation, which is another form of traditional punishment. However, the Seventh Circuit has twice rejected this argument. First, in Vasquez , the court described as "inapt" the plaintiffs’ comparison of Illinois's residency restrictions to punishments such as probation and supervised release. 895 F.3d at 521. The court stated that "[a]lthough the Illinois residency restrictions limit where sex offenders may live, the statute does not control any other aspect of their lives and thus does not resemble the comprehensive control of probation and supervised release." Id. The same is true with respect to Paris's residency restrictions. Second, in Hope , the Seventh Circuit determined that, while it was a "closer call," a sex-offender law that restricted where the offender could live and work, and that required the offender to register with the authorities in person, was "still distinct from parole." 9 F.4th at 531–32. Key to the court's conclusion was the fact that the law did not allow a supervisor to seek revocation in the event of an infraction. Id. The court reasoned that the offender's being subject to new criminal sanctions for violating the law was not the same thing as the offender's being subject to revocation by a supervisor. Id. at 532. Again, the same is true here: While the plaintiff may be fined $500 for violating the residency restrictions, he does not report to a supervisor that has the power to re-confine him without commencing a new criminal prosecution. Because I am bound by Vasquez and Hope , I must conclude that the Town's ordinance does not create punishment that is akin to parole or probation.
In short, I conclude that the Smith factor regarding traditional forms of punishment does not indicate that the Town ordinance is punitive in effect.
2. Affirmative Disability or Restraint
Turning to the second Smith factor, the plaintiff contends that a restriction on where a person may reside is an affirmative disability or restraint. Once again, however, decisions from the Seventh Circuit say otherwise. In Vasquez , the court held that Illinois's residency restriction did not impose an affirmative disability or restraint even though it made it difficult for sex offenders to find suitable homes in their neighborhoods. 895 F.3d at 521–22. As I discussed above in the context of banishment, the record in the present case does not show that the Town's residency restriction is more severe in effect than the restriction in Vasquez . Further, the restriction is in some ways more lenient because the creation of new protected locations cannot displace established residences, and the law has an appeal procedure that allows an offender to seek an individualized exemption. Thus, Vasquez forecloses the argument that the Town's residency restriction imposes an affirmative disability or restraint.
Moreover, in Hope , the Seventh Circuit noted that, "[o]utside the ‘paradigmatic’ example of physical restraint, it is not evident what statutory requirements amount to a restraint or disability," and that "very few burdens are significant enough to tip the scale." 9 F.4th at 532. To be sure, the court did not explicitly find that that the Indiana law in question did not impose an affirmative disability or restraint; instead, the court indicated that, even if it did, the weight of that Smith factor would not be sufficient to make the law punitive. Id. at 532–33. In the present case, the ordinance does not involve a physical restraint, and it is less invasive than the Indiana law at issue in Hope , in that it does not regulate employment or block access to school property. See id. at 520. Thus, Hope reinforces the conclusion that Paris's law does not impose an affirmative disability or restraint. 3. Traditional Aims of Punishment
Next, the plaintiff contends that the ordinance promotes the traditional punitive aims of retribution and deterrence because the restrictions are imposed "solely on the basis of a person's having been convicted of a crime in the past rather than any current assessment of whether the individual poses a danger." (ECF No. 43 at 20 of 58.) Initially, I note that it is not entirely accurate to state that the ordinance imposes restrictions "solely" on the basis of past criminal activity, for the appeal procedure instructs the Appeal Board to consider the "[c]urrent dangerousness of the offender" when deciding whether the offender will be granted an exemption. Ord. § 10-25(4)(f). In any event, nearly all laws creating sex-offender registries or residency restrictions impose burdens based on past convictions rather than on individualized assessments of the offender's current dangerousness. That is simply the nature of such laws. They are based on the assumption that persons convicted of sex offenses have a propensity to reoffend. See Smith , 538 U.S. at 103, 123 S.Ct. 1140 (a state "could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism"). Yet, both the Supreme Court and the Seventh Circuit have held that such laws should not be regarded as promoting the traditional punitive aims of retribution and deterrence. Id. at 102, 123 S.Ct. 1140 ; Hope , 9 F.4th at 533 ; Vasquez , 895 F.3d at 522 ; see also Smith , 538 U.S. at 103, 123 S.Ct. 1140 ("The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences.").
The plaintiff does not show that there is anything unique in the Paris ordinance that brings it outside the scope of the existing binding cases and allows me to conclude that, unlike the laws in those cases, this law should be regarded as promoting punitive goals. The plaintiff contends that this case is unique because the Town, in its brief, argues that the law promotes some of the same goals as parole, which is a form of punishment. (ECF No. 43 at 16.) That is not an accurate description of the Town's argument. The Town does not argue that the ordinance promotes the same goals as parole, but that some of the same empirical assumptions behind certain parole restrictions show that the ordinance rationally furthers the Town's interest in protecting children. (See ECF No. 28 at 21 & 29.) In any event, as I have already discussed, the courts have rejected the analogy to probation or parole as a reason to find sex-offender laws punitive. Smith , 538 U.S. at 101–02, 123 S.Ct. 1140 ; Hope , 9 F.4th at 531–32 ; Vasquez , 895 F.3d at 521. Thus, I conclude that this Smith factor favors the Town.
4. Rational Connection to a Nonpunitive Purpose and Excessiveness with Respect to that Purpose
I consider the final two Smith factors together because the Town advances several purposes for its laws and the plaintiff challenges some of them on rationality grounds and some on excessiveness grounds. Whether the law has a rational connection to a nonpunitive purpose is "a ‘[m]ost significant’ factor" in determining whether the law's effects are not punitive. Smith , 538 U.S. at 102, 123 S.Ct. 1140. This is a low threshold, requiring only that a legislature's justification rise above a mere "sham." Vasquez , 895 F.3d at 522 ; see also Pl. Br. in Supp. at 42 (conceding this point). When considering whether the law is excessive with respect to its nonpunitive purpose, the court does not ask "whether the legislature has made the best choice possible to address the problem it seeks to remedy." Id. at 105, 123 S.Ct. 1140. Instead, "[t]he question is whether the regulatory means chosen are reasonable in light of the nonpunitive objective." Id.
In considering these two factors together, I do not mean to minimize the importance of either factor. (See Pl. Br. in Opp. at 30 n.12 (suggesting that the practice of combining the analysis of the final two Smith factors has the effect of minimizing the importance of the excessiveness factor)).
The Town's ordinance creates two types of exclusion zones: (1) 6,500-foot zones around protected locations such as parks, schools, and day cares, and (2) 6,500-foot zones around established sex-offender residences. The Town contends that the nonpunitive purpose of the exclusion zones around protected locations is to protect children from the risk posed by sex offenders. And it contends that the exclusion zones around other sex-offender residences serve two non-punitive purposes: (1) they protect children from sex offenders by discouraging them from socializing and potentially reinforcing each other's criminal tendencies, and (2) they prevent concentrations of sex offenders from forming and thus spread the risks and burdens associated with sex-offender residences throughout the Town.
Obviously, protecting children from harm is a legitimate nonpunitive goal, and the plaintiff concedes that "lawmakers could plausibly think that prohibiting persons with past convictions from living near to places frequented by children might reduce the likelihood of future offenses." (Pl. Br. in Supp. at 42.) Thus, the plaintiff does not dispute that the Ex Post Facto Clause allowed the Town to pass a law creating exclusion zones around such places. But the plaintiff contends that the Town went too far by enacting 6,500-foot exclusion zones. He contends that this distance renders the law excessive in relation to its purpose of protecting children.
The plaintiff contends that 6,500-foot exclusion zones are excessive for essentially three reasons: (1) the Town does not have empirical evidence showing that a 6,500-foot exclusion zone, as opposed to a zone based on a smaller distance, is necessary to protect children; (2) a 6,500-foot distance is greater than the distance used by state governments and neighboring municipalities; and (3) the available empirical evidence generally shows that exclusion zones in general are ineffective because they do not prevent sex crimes against children and may actually increase recidivism.
Regarding the plaintiff's first reason, no authority suggests that a legislature must rely on empirical evidence when setting the precise distance of its exclusion zones. To the contrary, when suspect classes are not involved and a court is reviewing legislation only for rationality, "a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data." Fed. Commc'ns Comm'n v. Beach Commc'ns, Inc. , 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). To be sure, when reviewing legislation for punitiveness under the Ex Post Facto Clause, a court must also examine whether the law is excessive, but no court has applied the excessiveness factor in a way that requires legislatures to produce empirical evidence that supports their chosen distances. In fact, the Eighth Circuit has expressly held that such evidence is not required. See Doe v. Miller , 405 F.3d 700, 722–23 (8th Cir. 2005) (upholding 2,000-foot exclusion zone). Moreover, as the Eighth Circuit found, there is no empirical evidence that will identify the "precise distance" that best serves the legislature's interest. Id. at 722. Thus, identifying the optimal distance requires the legislature to make a policy judgment to which the courts must defer. Perhaps I could deem the Town's exclusion zone excessive if the record showed that some distance of less than 6,500 feet is so clearly the maximum reasonable distance for protecting children that the Town's decision to adopt a greater distance must be regarded as unreasonable. But, like in the Eighth Circuit's case, the record here contains no expert testimony or empirical studies identifying a maximum reasonable distance.
The plaintiff has cited publications suggesting that sex-offender residency restrictions do not actually protect children, and that therefore the maximum reasonable distance is zero feet. But, as discussed below, binding authority prevents me from holding that any exclusion zone is excessive in relation to the legislature's nonpunitive purpose.
The plaintiff next contends that the Town's choice of 6,500 feet should be deemed excessive because that distance is greater than the distances chosen by other municipalities in Kenosha County and by state governments. Here, the plaintiff points to laws creating exclusion zones that range between 300 and 2,500 feet. (ECF No. 43 at 38–40 of 58.) The plaintiff emphasizes that the neighboring municipality of Brighton, Wisconsin, is similar to Paris, in that it is predominantly rural, but it uses an exclusion zone of only 2,500 feet. The plaintiff contends that evidence of what other jurisdictions have done shows that there are "[o]bvious and easy alternatives" to 6,500-foot exclusion zones, and that therefore zones of that size should be deemed constitutionally excessive. (ECF No. 32 at 48 of 73.) But under the excessiveness prong, the legislature is not required to choose "the best choice possible to address the problem it seeks to remedy." Smith , 538 U.S. at 105, 123 S.Ct. 1140. Moreover, the plaintiff's claim that zones used by other jurisdictions would be just as effective as 6,500-foot zones is undercut by his own empirical evidence, which concludes that exclusion zones of between 500 and 2,500 feet are ineffective. See Pl. Br. in Opp. at 36–37 (citing Minn. Dep't of Corr., Residential Proximity & Sex Offender Recidivism in Minnesota , at 1–2 (April 2007)). My intent in pointing this out is not to say "gotcha," but to show that the smaller sizes chosen by other jurisdictions are not so clearly effective that Paris's choice of a larger size must be regarded as excessive and punitive.
Finally, the plaintiff contends that the Town's choice of 6,500 feet should be deemed excessive because social scientists and corrections officials are beginning to conclude that residential exclusion zones do not improve public safety or prevent recidivism and in fact might increase recidivism by making it harder for sex offenders to find stable residences. But in focusing on these criticisms of residency restrictions in general, the plaintiff is, in effect, arguing that no residential exclusion zone, whatever its size, can further the nonpunitive goals of protecting children and preventing recidivism. He is not arguing that the Town's choice of 6,500 feet is excessive, except insofar as he is making the trivial or tautological point that a law that does not further a nonpunitive purpose is necessarily also excessive in relation to that purpose. Further, as the plaintiff concedes (Br. in Opp. at 18 n.6), the Seventh Circuit has already held that a legislature may rationally conclude that sex-offender residency restrictions serve the nonpunitive purposes of protecting the public and preventing recidivism. Hope , 9 F.4th at 533–34 ; Vasquez , 895 F.3d at 522. Given this binding authority on a matter of "legislative fact," I cannot use the plaintiff's empirical evidence to reach a different conclusion. See Frank v. Walker , 768 F.3d 744, 750 (7th Cir. 2014). Perhaps the plaintiff's body of evidence will eventually convince the higher courts (or state and local legislatures) that residency restrictions do not serve any rational nonpunitive purpose, but for now I am bound to assume that they do. Therefore, I cannot deem the Town's choice of 6,500-foot exclusion zones excessive based on the plaintiff's evidence that exclusion zones of any size are excessive.
In addition to the publication by the Minnesota Department of Corrections cited in the text, the plaintiff cites the following publications on the topic of the effectiveness of sex-offender residency restrictions: Christopher Lobanov-Rostovsky, Adult Sex Offender Management , U.S. Dep't of Justice, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (July 2015); Chris Lobanov-Rostovsky, Sex Offender Management Strategies , Nat'l Crim. Just. Ass'n, Sex Offender Management Assessment and Planning Initiative 181 (SMART Office 2017); Paul A Zandbergen, et al., Residential Proximity to Schools and Daycares: An Empirical Analysis of Sex Offender Recidivism , 37 Crim. Just. & Behav. 482 (2010); Kan. Dep't of Corr., Twenty Findings of Research on Residential Restrictions for Sex Offenders and the Iowa Experience with Similar Policies (June 21, 2013, 11:30 AM), https://www.doc.ks.gov; Colorado Sex Offender Mgmt. Bd., White Paper on the Use of Residency Restrictions as a Sex Offender Management Strategy (June 2009).
Before leaving the subject of the excessiveness of the Town's choice of 6,500 feet, I stress that my conclusion that the plaintiff has not proved that this distance is excessive does not imply that a municipality is free to choose any distance, no matter how large or how much of the municipality it places off limits to sex offenders. If a municipality chooses a distance that has the effect of placing all or substantially all of the municipalities’ residences within exclusion zones, then the municipality will likely be deemed to have "banished" sex offenders and will face difficulties under the Smith factor that examines the law's resemblance to traditional forms of punishment. But, as I explained when discussing that factor, the Town's ordinance does not result in banishment, as it leaves more than 40% of the Town's residential units available to sex offenders who wish to move there.
I now turn to the question of whether the Town's exclusion zones around other sex-offender residences have a rational connection to a nonpunitive purpose. Like with the exclusion zones around protected locations, one of the purposes of the exclusion zones around other sex offenders is to protect children from sex offenders who might reoffend. The Town contends that the zones serve this purpose by discouraging sex offenders from socializing with one another and reinforcing their preexisting criminal tendencies. (Def. Br. in Supp. at 27–31.) The Town cites the testimony of its expert in forensic criminology, Dr. Dennis Savard, as support for the proposition that criminals tend to associate with those with similar values and backgrounds and that interactions among those with such values and backgrounds can lead to reoffending. Dr. Savard interprets several studies to support the idea that sex-offender clusters can lead to an increased risk of sexual victimization of adults. (Town PFOF ¶ 96.) He also interprets studies as supporting the idea that a "crossover effect" has been observed in which sex offenders who prey on adults also prey on children. (Id. ¶ 120.)
The plaintiff contends that, for five reasons (several of which are closely related), the exclusion zones around other offenders do not rationally further the nonpunitive purpose of protecting children. First, the plaintiff contends that such zones are "unprecedented," in that no state government has adopted them and no court has evaluated their constitutionality. (ECF No. 43 at 24–25 of 58.) However, novel laws can be rational, so the plaintiff's observation that the ordinance is unprecedented does not support the idea that it is irrational.
Second, the plaintiff contends that because Dr. Savard is not certain that preventing sex offenders from living near each other will prevent recidivism, the Town's reliance on his theory is suspect. Third and relatedly, the plaintiff contends that other "evidence, relevant research, and standard practices for the treatment and supervision of persons with sex offense convictions" shows that exclusion zones around other sex offenders are "contraindicated." (ECF No. 43 at 26 of 58.) However, as noted above, a court evaluating legislation for rationality does not require the legislature to support its factual conclusions with any evidence or empirical data at all. Beach Commc'ns , 508 U.S. at 315, 113 S.Ct. 2096. And in the Ex Post Facto context, the court asks only whether the asserted nonpunitive purpose is a "sham or mere pretext." Smith , 538 U.S. at 103, 123 S.Ct. 1140 ; Vasquez , 895 F.3d at 522. Here, Dr. Savard's testimony at least supports the idea that it is rational to think that discouraging sex offenders from forming social networks with one another may reduce the risk of recidivism, and that therefore the Town's nonpunitive purpose is not a sham or pretext. Moreover, as discussed below, even in the absence of such testimony, the Town's belief that exclusion zones around other sex offenders protect the public would be rational.
Fourth, the plaintiff contends that it is not rational to believe that sex offenders who live within 6,500 feet of one another are likely to meet and associate with one another. The plaintiff believes that it is "common sense" that neighbors do not get to know each other, and he contends that this is proven by the fact that he never met the sex offender that lived within 6,500 feet of his residence at the Bristol Motel. (ECF No. 43 at 28 of 58.) Obviously, however, it is at least rational to think that neighbors tend to meet each other and form social circles. Further, the plaintiff's failure to encounter the sex offender who lived near the Bristol Motel shows only that not every person will meet every other person that lives nearby. This, of course, does not mean that a legislature cannot pass a law based on the premise that many neighbors do associate with each other. Smith , 538 U.S. at 103, 123 S.Ct. 1140 ("A statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance."). Relatedly, the plaintiff argues that the Town has inaccurately "assume[d] that all persons with past convictions are fundamentally incapable of rehabilitation and will always seek to reoffend and influence others to do so as well." (ECF No. 43 at 29 of 58.) But that is not the assumption that underlies the exclusion zones around other sex offenders. Rather, the assumption is that some sex offenders will reoffend and influence others to do so. This more limited assumption is all that is necessary to give the law a rational connection to the nonpunitive purpose of preventing recidivism. Vasquez , 895 F.3d at 522 (legislatures "may make ‘reasonable categorical judgments ... without any corresponding risk assessment’ ").
Finally, the plaintiff contends that the exclusion zones around other sex offenders are irrational because they do not prohibit sex offenders from associating with one another, only from residing near each other. But again, a law "is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance." Smith , 538 U.S. at 103, 123 S.Ct. 1140. Moreover, the Town could rationally think that preventing sex offenders from living near each other will reduce the extent to which they associate and reinforce each other's criminal tendencies.
In short, the plaintiff has not shown that the exclusion zones around other sex-offender residences do not rationally further the nonpunitive purpose of protecting the public from sex offenders. For this reason alone, those zones comply with the fourth and fifth Smith factors, and I need not discuss the Town's second nonpunitive purpose for those zones (distributing the risks of sex-offender recidivism equitably throughout the Town).
5. Conclusion as to Smith Factors
Based on the analysis above, I conclude that none of the Smith factors points in favor of a finding that, despite the Town's nonpunitive intent, the effects of the ordinance are so punitive as to negate that intent. Accordingly, the Town is entitled to summary judgment on the plaintiff's claim under the Ex Post Facto Clause. The plaintiff's cross-motion on such claim will be denied.
C. Substantive Due Process
The plaintiff's remaining challenge to the Town's ordinance is based on substantive due process. The plaintiff concedes that the Town law does not regulate a suspect class or infringe on fundamental rights, and that therefore his claim is subject to the rational-basis test. (Pl. Br. in Supp. at 53.) Under the rational-basis test, a law is valid if "its intrusion upon liberty is rationally related to a legitimate governmental interest." Vasquez , 895 F.3d at 525. In arguing that the ordinance does not satisfy rational-basis review, the plaintiff largely repeats the arguments that he made in the context of the fourth and fifth Smith factors. However, as I discussed above, those arguments do not show that the ordinance does not rationally further the Town's nonpunitive purpose of protecting children from the risk of recidivism by sex offenders. Because protecting children from child sex offenders is a legitimate governmental interest, Vasquez , 895 F.3d at 525, the plaintiff's arguments also fail under the Due Process Clause.
The plaintiff, however, contends that I should apply "heightened scrutiny" to the ordinance because it targets a despised minority (sex offenders). (Pl. Br. in Opp. at 51; Reply Br. at 19.) But the Seventh Circuit has already rejected this exact argument. In Vasquez , the plaintiffs (who were represented by the attorneys who represent Nelson here) challenged an Illinois sex-offender residency restriction under substantive due process and urged the Seventh Circuit "to apply heightened scrutiny" based on the argument that "the residency requirements were enacted out of pure animus toward child sex offenders, a politically unpopular group." 895 F.3d at 524. The court flatly rejected that argument, stating that "[h]eightened scrutiny does not apply." Id. at 525. The court then proceeded to apply the ordinary rational-basis test and concluded that the Illinois residency restriction was rationally related to a legitimate governmental interest. Along the way, the court also rejected the notion that the kind of empirical evidence that the plaintiff relies on in this case can be used to show that residency restrictions do not rationally further the goal of protecting children. The court described the Vasquez plaintiffs as "insist[ing] that ‘scant evidence’ supports the public-safety rationale of [the restriction]" and "argu[ing] that the harsh burdens placed on sex offenders are highly disproportionate to any benefit." Id. The court responded by noting that a court could not "second-guess the legislative policy judgment by parsing the latest academic studies on sex-offender recidivism." Id.
Vasquez forecloses the plaintiff's argument that a heightened form of rational-basis scrutiny applies to the Town's ordinance and the possibility that empirical studies could be used to show that the Town has acted irrationally. Moreover, for the reasons I have already discussed, the ordinance survives ordinary rational-basis review because the exclusion zones around protected locations and other sex-offender residences are rationally related to the legitimate governmental interest of protecting children from sex offenders. Accordingly, the Town is entitled to summary judgment on the plaintiff's substantive due process claim, and the plaintiff's cross-motion for summary judgment on the claim will be denied.
III. CONCLUSION
For the reasons stated, IT IS ORDERED that the Town's motion for summary judgment (ECF No. 24) is GRANTED and that the plaintiff's motion for summary judgment (ECF No. 29) is DENIED .