Belleau v. Wall

• Decision Date: 21 September 2015
• Docket Number: Case No. 12–CV–1198.
• Citation: 132 F.Supp.3d 1085
• Parties: Michael J. BELLEAU, Plaintiff, v. Edward F. WALL and Denise Symdon, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

132 F.Supp.3d 1085

Michael J. BELLEAU, Plaintiff,

v.Edward F. WALL and Denise Symdon, Defendants.

Case No. 12–CV–1198.

United States District Court, E.D. Wisconsin.

Signed Sept. 21, 2015.

James A. Walrath, Zetley Law Office SC, Milwaukee, WI, Laurence J. Dupuis, American Civil Liberties Union of Wi Foundation Inc., Milwaukee, WI, for Plaintiff.

Anthony D. Russomanno, Abigail C.S. Potts, Wisconsin Department of Justice, Madison, WI, for Defendants.

DECISION AND ORDER ON SUMMARY JUDGMENT

WILLIAM C. GRIESBACH

, Chief Judge.

In 2006, Wisconsin enacted a law requiring certain persons who have been convicted of a serious child sex offense to wear a global positioning system (GPS) tracking device for the rest of their lives. Wis. Stat. § 301.48

(2013–2014). The law became effective on July 1, 2007. The question presented in this case is whether that law can be constitutionally applied to a person whose crimes occurred almost twenty years before the law was enacted and who is no longer under any form of court ordered supervision.

Plaintiff Michael Belleau originally filed this action pro se against the assistant district attorney who represented the State in a previous proceeding against him. Because of the importance of the issues raised by the case, counsel was recruited to assist him. In an amended complaint filed thereafter, Edward F. Wall, Secretary of the Wisconsin Department of Corrections (DOC), and Denise Symdon, Administrator of the Division of Community Corrections, were substituted as defendants, both in their official capacities. The amended complaint alleges that the defendants (hereinafter "the State") violated Belleau's rights under the Ex Post Facto Clause, and the Fourth and Fourteenth Amendments to the United States Constitution by subjecting him to lifetime GPS tracking pursuant to Section 301.48

. It seeks a declaration to that effect and an injunction enjoining the State from enforcing Section 301.48 against Belleau. Based upon the facts set forth below, most of which are taken from their stipulation, the parties have filed cross motions for summary judgment. For the reasons that follow, Plaintiff's motion will be granted and the State's motion denied.

BACKGROUND

In 1992 Michael Belleau was convicted of second degree sexual assault of a child. The charge was based on allegations that Belleau had sexually assaulted a boy over the course of five years, beginning when the boy was eight years old. The judgment of conviction shows an offense date of between October 23, 1987 and January 23, 1988. Aff. of Abigail C. Potts, Ex. 1011, ECF No. 61–2. Despite the severity of the offense, sentence was withheld and Belleau was placed on probation for a term of five years with conditions that he spend one year in the county jail and undergo treatment. In 1994 Belleau was convicted of having committed the crime of first-degree sexual assault of a nine-year-old girl on June 1, 1988. Id. For this crime, Belleau was sentenced to ten years in prison. Belleau was paroled in December 2000, but his parole was revoked and he was returned to prison as of October 1, 2001, after he admitted that he had contact with two girls ages four and five; that he had sexual fantasies about them; and that he would have molested the girls if given the opportunity. The conduct did not result in any new criminal charges, and Belleau's sentence for his previous conviction expired on January 3, 2005.

Prior to the expiration of his sentence, the State filed a petition in Brown County Circuit Court seeking to have Belleau civilly committed under Chapter 980 of the Wisconsin Statutes as "a sexually violent person." "A sexually violent person" is defined in Chapter 980 as "a person who has been convicted of a sexually violent offense ... and who is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in one or more acts of sexual violence." Wis. Stat. § 980.01(7)

. A "sexually violent offense" is any felony sexual assault as well as other serious felonies that appear to have been sexually motivated. Id. § 980.01(6). The term "mental disorder" is defined as "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence." Id. § 980.01(2). Though it is not a criminal proceeding, a person who is the subject of a petition under Chapter 980 has the right to many of the same procedural protections as a person charged with a crime, including the right to counsel, pretrial discovery, and a trial with the right to present and cross-examine witnesses, and in which the petitioner carries the highest burden of proof (beyond a reasonable doubt) and needs a unanimous jury verdict to prevail. Wis. Stat. §§ 980.03(2), (3) & 980.05. Upon a determination that he is a sexually violent person, the person is committed to the custody of the Wisconsin Department of Health Services for control, care, and treatment until he is no longer a "sexually violent person." Wis. Stat. § 980.06.¹ On or about September 15, 2004, a jury determined that Belleau met the standard for commitment under Chapter 980, and he was committed to Sand Ridge Secure Treatment Center in Mauston, Wisconsin.

Every twelve months, a person committed under Chapter 980 is entitled to a reexamination to determine whether the offender has made sufficient progress to be released on supervision or discharged. Wis. Stat. § 980.07

. On February 12, 2010, Dr. Richard Ellwood, a psychologist in the Sand Ridge Evaluation Unit, completed an annual examination of Belleau pursuant to Section 980.07

. Dr. Ellwood diagnosed Belleau with pedophilia based on the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Ed., Text Revision DSM–JV–Tr, American Psychiatric Association (2000), and Belleau's history of offenses. According to Dr. Ellwood, the general understanding within the psychiatric profession is that pedophilia in adults cannot be changed. In Dr. Ellwood's opinion, Belleau's pedophilia is a mental disorder that predisposes him to commit sexually violent acts. Notwithstanding his diagnosis of pedophilia, however, Dr. Ellwood concluded that Belleau did not meet the criteria for continuation of his commitment under Chapter 980.

Dr. Ellwood arrived at this conclusion based on Belleau's score on the Static–99R, an actuarial risk assessment tool. "Essentially, actuarial risk assessment tools are methods of scoring individuals on a continuum of risk using risk-related attributes, such as drug use, criminal offense history, employment status, and childhood exposure to physical or sexual abuse, among others." Eric Silver and Lisa L. Miller, A Cautionary Note on the Use of Actuarial Risk Assessment Tools for Social Control, 48 CRIME & DELINQUENCY 138, 139 (2002). Actuarial risk assessment tools are commonly used in an attempt to predict whether a given offender will recidivate, i.e., commit another offense. See generally, Tracy Bateman Farrell, J.D., Annotation, Admissibility of Actuarial Risk Assessment Testimony in Proceeding to Commit Sex Offender, 20 A.L.R. 6th 607 (2006)

.² Dr. Ellwood scored Belleau on the Static–99R at 0, which is a low risk range that, according to the source of recidivism rates Dr. Ellwood used, corresponded to a 7% chance of Belleau being charged or convicted of a new sex offense within 5 years of release from custody and a 13% chance within 10 years.³ Aff. of Dr. Richard W. Ellwood, Ex. 1005, ECF No. 73. Although Belleau scored higher on the MnSOST–R, another actuarial risk assessment tool, Dr. Ellwood gave less weight to that score because of the MnSOST's greater margin of error and the fact that it did not account for the effect of aging as did the Static–99R. Since Belleau was sixty-seven years old at the time, the latter fact would appear especially significant. And while he also factored into his evaluation a number of dynamic risk factors, such as Belleau's failure to complete treatment and his earlier expressed attitude toward his offenses, Dr. Ellwood concluded that they did not "substantially alter the low to moderate risk indicated by the static factors." ECF No. 73 at 6. Because his evaluation did not show that Belleau was more likely than not to commit a sexually violent act if he were released, Dr. Ellwood concluded that he did not meet the requirements for continued commitment under Chapter 980.

Based on Dr. Ellwood's evaluation, the State stipulated that it could not prove that Belleau was a sexually dangerous person, and on July 2, 2010, the Circuit Court of Brown County entered an order discharging Belleau from his Chapter 980 commitment pursuant to Section 980.09(4). The discharge was made effective July 7, 2010, however, to allow the DOC time to install a GPS monitoring device on Belleau after the holiday weekend.

Section 301.48

, which was enacted as 2005 Act 431 by the Wisconsin legislature in 2006 and became effective on July 1, 2007, established a continuing GPS tracking system operated by the DOC to electronically monitor the whereabouts of persons who have been convicted of serious child sex offenses. GPS tracking is defined as "tracking using a system that actively monitors and identifies a person's location and timely reports or records the person's presence near or at a crime scene or in an exclusion zone or the person's departure from an inclusion zone." Wis. Stat. § 301.48(1)(b). The GPS tracking and monitoring law provides that persons, like Belleau, who are discharged from Chapter 980 civil commitment by a court order under Section 980.09(4) are subject to lifetime GPS monitoring. Wis. Stat. § 301.48(2)(b)2.

Belleau was released from the Brown County Jail on the morning of July 7, 2010, before the DOC agents arrived. He was located at a nearby bus stop, and without any warrant or other court order, the DOC agents quickly escorted him back to the jail where they proceeded to attach a 2.5 x 3.5 x 1.5 inch GPS tracking device to him with a...