City of S. Milwaukee v. Kester

• Decision Date: 13 March 2013
• Docket Number: No. 2012AP724.,2012AP724.
• Citation: 347 Wis.2d 334,830 N.W.2d 710,2013 WI App 50
• Parties: CITY OF SOUTH MILWAUKEE, Plaintiff–Respondent, v. Todd J. KESTER, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

347 Wis.2d 334

830 N.W.2d 710

2013 WI App 50

CITY OF SOUTH MILWAUKEE, Plaintiff–Respondent,

v.Todd J. KESTER, Defendant–Appellant.^†

No. 2012AP724.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 10, 2013.

Opinion Filed March 13, 2013.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Laurence J. Dupuis of American Civil Liberties Union of Wisconsin Foundation, Inc., Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joseph G. Murphy of Murphy & Leonard, LLP, South Milwaukee.

A nonparty brief was filed by Ellen Henak of Henak Law Office, S.C. of Milwaukee for Wisconsin Association of Criminal Defense Lawyers.

Before BROWN, C.J., NEUBAUER, P.J., and REILLY, J.

REILLY, J.

[347 Wis.2d 341]¶ 1 Todd J. Kester was convicted of sexually assaulting a child in 2000. In April 2010, Kester moved into a residence in the City of South Milwaukee that was within 1000 feet of an elementary school. The City has an ordinance that prohibits child sex offenders such as Kester from living within 1000 feet of elementary schools. Kester was told by the City that he had to move. Kester refused. The City filed an action in circuit court, asking the court to declare Kester's residency a public nuisance and to enjoin him from living in the home. The circuit court granted the injunction and ordered Kester to move.

¶ 2 Kester appeals, arguing that his residency should not have been declared a nuisance without an individual determination of his dangerousness, that his right to procedural due process was denied as he was not permitted to show he did not pose a risk of harm to children, that the City's ordinance is preempted by state law, and that the City's ordinance as applied to him violates the Double Jeopardy and Ex Post Facto Clauses of the United States and Wisconsin Constitutions. We disagree and affirm the circuit court.

BACKGROUND

¶ 3 Kester was convicted on November 6, 2000, of second-degree sexual assault of a child in violation of Wis. Stat. § 948.02(2) (2011–12) ¹ for an offense that occurred while he lived in Sheboygan. In April 2010, Kester moved to a residence in the City of South Milwaukee within 1000 feet of Lakeview School, a public elementary school. The City had in effect an ordinance (the Ordinance) forbidding anyone convicted of committing certain sex offenses against children, including § 948.02(2), from living within 1000 feet of a school or other facility found to be frequented by children. South Milwaukee, Wis., Mun.Code (SMMC) § 23.167–2, – 3 (effective Aug. 30, 2007). The Ordinance also applied to individuals found not guilty by reason of mental defect or disease of committing one of the enumerated offenses against children. SMMC § 23.167–3. The Ordinance's declared purpose was to “protect [ ] the health and safety of children in South Milwaukee from the risk that convicted sex offenders may re-offend in locations close to their residences.” SMMC § 23.167–1.

¶ 4 The Ordinance provided certain exceptions: for people who had established residences in South Milwaukee prior to the effective date of the Ordinance (August 30, 2007), for those who resided in their homes prior to a children's facility moving within 1000 feet of their residences, for those living in South Milwaukee at the time of their most recent child sex convictions; and for minors or wards under guardianship. SMMC § 23.167–4, –5. For all others, the Ordinance required the City attorney, upon notification of a violation by the police chief, to “bring an action in the name of the City in the Circuit Court of Milwaukee County to permanently enjoin such residency as a public nuisance.” SMMC § 23.167–7.

¶ 5 After Kester refused to move, the City filed a complaint in Milwaukee County Circuit Court requesting that Kester's continued residency be found a public nuisance and that the court issue an injunction requiring him to move. Kester admitted that he was convicted under Wis. Stat. § 948.02(2) in November 2000 while residingin Sheboygan and that he currently lived within 1000 feet of Lakeview School. Kester moved for judgmenton the pleadings on various grounds, including those raised in this appeal. The court denied Kester's motion.

¶ 6 The City brought two motions to the court: first, for partial summary judgment on the issue of whether Kester's continued residency constituted a public nuisance and, second, for an order preventing Kester from offering evidence that he did not pose a risk of reoffense and was not a public nuisance. The court granted both of the City's motions. The court ultimately issued an injunction and ordered Kester to move. Kester appeals.

DISCUSSION

¶ 7 Kester raises four issues on appeal. His first two arguments are related in that he asserts that the circuit court erred in issuing an injunction without determining whether his residency constituted an actual public nuisance based on his risk of reoffending and, secondly, that his right to procedural due process is violated by applying a nuisance “per se” standard to him. Kester argues next that the Ordinance is preempted by state laws regulating sex offenders and, lastly, that the Ordinance as applied to him violates both the Double Jeopardy and Ex Post Facto Clauses of the United States and Wisconsin Constitutions.

Kester's Status Coupled with hisResidency Within 1000 Feet of a School

Constitutes a Public Nuisance Per Se

Under the Ordinance

¶ 8 Kester argues that before a court may find him to be a public nuisance under the Ordinance, the City must show that he is a nuisance by his acts or his likelihood to act in a detrimental way. Stated differently, Kester argues that in order to enjoin his continued residency within 1000 feet of Lakeview School, the City must establish that his residency is an “actual nuisance” utilizing the common-law definition of nuisance. ² We address Kester's argument first by examining the power of municipalities to govern nuisances and finish by examining the ordinance in question.

¶ 9 Municipalities have broad authority through their police powers to protect “the health, safety, and welfare” of their residents, including the ability to define and take action against public nuisances. SeeWis. Stat. § 62.11(5); Dallmann v. Kluchesky, 229 Wis. 169, 173, 175–76, 282 N.W. 9 (1938). A nuisance per se may be established by law, and no actual injurious consequences are required to support a finding of a nuisance per se. In re Eldred, 46 Wis. 530, 543, 1 N.W. 175 (1879). When a municipality has enacted an ordinance that defines a public nuisance per se, courts should not interfere in this determination absent a showing of “oppressiveness or unreasonableness.” Boden v. City of Milwaukee, 8 Wis.2d 318, 325, 99 N.W.2d 156 (1959). An injunction is a permissible remedy to enforce an ordinance establishing a nuisance per se. See Village of Wind Point v. Halverson, 38 Wis.2d 1, 11, 155 N.W.2d 654 (1968).

¶ 10 The City of South Milwaukee determined that certain types of child sex offenders who live within 1000 feet of children's facilities interfere substantially in the enjoyment of life, health, and safety of the residents of the City and constitute public nuisances. The City enacted SMMC § 23.167 to preclude such nuisances.The clear language of the Ordinance establishes a public nuisance per se. The Ordinance employs two criteria that, subject to limited exceptions, define a public nuisance: (1) a person who has been convicted or found not guilty by reason of a mental defect or disease of one of a number of child sex crimes and (2) that person's residency within 1000 feet of any one of an enumerated list of facilities. SMMC § 23.167–2, –3. No other evidence is required to find the existence of a public nuisance for which an injunction may be issued.

¶ 11 Notably, Kester does not argue that the Ordinance's criteria (his status as a convicted child sex offender and the distance between his residence and the school) are oppressive or unreasonable. See Boden, 8 Wis.2d at 325, 99 N.W.2d 156. Instead, Kester argues that the language of the Ordinance requires an individual determination that he constitutes an “actual nuisance.” ³ We think it clear that such an individual determination is not required by the Ordinance when read in its entirety. See State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶ 46, 271 Wis.2d 633, 681 N.W.2d 110. The Ordinance forbids certain types of child sex offenders from residing within 1000 feet of certain facilities. SMMC § 23.167–3. The Ordinance carves out exceptions to this rule, which do not involve an individual risk assessment. SMMC § 23.167–4, –5. The City attorney has no discretion over whether to bring an action to enjoin a public nuisance when presented with evidence of a violation by the police chief. See SMMC § 23.167–7.

¶ 12 The City must prove that Kester falls within the type of sex offender identified by the Ordinance and that Kester resides within 1000 feet of an identified children's facility; the City need not prove any “detrimental acts” engaged in by Kester to obtain an injunction. The Ordinance on its face establishes that Kester's status as a convicted child sex offender under Wis. Stat. § 948.02(2) coupled with his residing within 1000 feet of a school constitutes a public nuisance per se for which an injunction may be issued.

Kester's Right to Procedural Due Process Was Not Violated

¶ 13 Kester next argues that the denial of a hearing as to whether his continued residency substantially interferes with the safety of others deprives him of important liberty and property rights without due process. “Procedural due process requires that a party whose rights may be affected by government action be given an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.” Wilke v. City of Appleton, 197 Wis.2d 717, 726, 541 N.W.2d 198 (Ct.App.1995)...