Doe v. Raemisch

• Decision Date: 04 January 2013
• Docket Number: Case No. 10–C–911.
• Citation: 895 F.Supp.2d 897
• Parties: John DOE of Connecticut and John Doe of Florida, Plaintiffs, v. Rick RAEMISCH et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

895 F.Supp.2d 897

John DOE of Connecticut and John Doe of Florida, Plaintiffs,

v.Rick RAEMISCH et al., Defendants.

Case No. 10–C–911.

United States District Court, E.D. Wisconsin.

Aug. 28, 2012.

Order Denying Reconsideration Jan. 4, 2013.

Held Unconstitutional

W.S.A. 301.45(10)

James A. Walrath, Law Offices of James A. Walrath LLC, Milwaukee, WI, for Plaintiffs.

Carrie M. Benedon, Monica A. Burkert Brist, Wisconsin Department of Justice, Madison, WI, for Defendants.

DECISION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

WILLIAM C. GRIESBACH, District Judge.

Plaintiffs John Doe of Connecticut (Doe I) and John Doe of Florida (Doe II) are each adult males who were previously convicted of sex crimes in Wisconsin and are subject to Wisconsin's sex offender registration and notification statutes, Wis. Stat. §§ 301.45, 301.46 (2009–10) ¹. Plaintiffs filed this action against the Wisconsin Department of Corrections (DOC), its secretary and the director of the DOC's Sex Offender Program, alleging that the application and enforcement of the Wisconsin sex offender registration requirements against them constituted punishment in violate the ex post facto clauses of the United States and Wisconsin constitutions. Plaintiffs also allege that subjecting them to these laws violated their constitutional rights to equal protection and substantive due process and unconstitutionally impaired their respective plea agreement contracts. Finally, Plaintiffs claim the website that posts their registration violates their right to privacy under Wis. Stat. § 995.50, and that the rule requiring them to disclose their email accounts, internet user names and addresses, and websites violates their First Amendment rights. The parties have filed cross-motions for summary judgment (ECF Nos. 21, 26) and the case is now ripe for resolution.For the reasons discussed below, Plaintiffs' motion (ECF No. 26) will be granted in part as to the $100 annual assessment § 301.45(10) imposes. In all other respects, Plaintiffs' motion is denied and Defendants' motion (ECF No. 21) will be granted.

I. Background

Doe I is currently 56 years old, married, resides in Connecticut, and has four adult children, three of whom are pursuing advanced post-graduate degrees. On April 21, 1993, Doe I was convicted on pleas of no contest in the Circuit Court for Winnebago County of two counts of second degree sexual contact in violation of section 948.02(2) of the Wisconsin Statutes (sexual contact or intercourse with one who has not attained the age of 16). Doe I was 37 years old at the time of the offense. The sentencing court imposed but stayed a four-year term of imprisonment and placed Doe I on probation for six years. Conditions of probation included 2000 hours of community service for the local school district. While he was on probation, the Wisconsin Department of Corrections (DOC) assessed Doe I's risk of reoffense at the lowest level. Doe I satisfied all conditions of his probation and received an absolute discharge on April 21, 1999.

Doe II is currently 46 years old, married, resides in Florida, and has two sons (ages 2 and 4) and an adult daughter. He is also stepfather to his wife's children. On April 14, 1987, an Outagamie County jury found Doe II guilty of sexual assault of a 19–year old female in violation of Wis. Stat. § 940.225(2)(a). He was also found guilty of endangering safety by conduct regardless of life in violation of Wis. Stat. § 941.30 and false imprisonment contrary to Wis. Stat. § 940.30. Doe II, who was 20 years old at the time of the time of the offense, was sentenced to five years in prison and discharged on June 13, 1995. On May 12, 1993, Doe II, then 27 years old and presumably on parole, was convicted in Winnebago County Circuit Court on a plea of no contest of third degree sexual assault in violation of Wis. Stat. § 940.225(3). He was sentenced to one year imprisonment and discharged from that sentence on June 16, 1994.

Although Wisconsin's statute requiring registration of sex offenders was not in effect at the time of their convictions, both Plaintiffs were required to register as sex offenders before completing their sentences. Wisconsin's sex offender registration statute became effective on December 25, 1993, and applies to offenders who were still serving their sentences or were under supervision as of that date. Wisconsin's first statute required that Plaintiffs maintain their registration for fifteen years and did not require community notification. Plaintiffs understood the information would be used for law enforcement purposes. Over the years that followed, the Wisconsin legislature significantly increased the length of time Plaintiffs would have to maintain their registrations, the information the register included, and the general public's access to the information.

Wis. Stat. § 301.45 sets forth the scope and requirements of Wisconsin's current sex offender registration law. The law generally requires that any person convicted of a sex offense, which includes, inter alia, any felony sexual assault and possession of child pornography, register with the DOC. The registry maintained by DOC is required to contain various items of information, including the offender's name, aliases, identifying features, offense, date and place of conviction, date of release from prison or supervision, place of residence, supervising agency (if any), place of employment or school, and the most recent date the information was updated. Wis. Stat. § 301.45(2)(a)(1)-(10). Sex offenders subject to registration are also required to provide the DOC with all email accounts, internet user name and addresses, and identifiers for any email account, website, or internet address the offender “creates, uses, or maintains for personal, family, or household use,” but that information, which does not include passwords, is not placed on a registry accessible to the public. Wis. Stat. § 301.45(2)(a)(6m). In addition to providing DOC the foregoing information, DOC may also require offenders to go to an office or station of a local law enforcement agency to provide their fingerprints, a recent photograph or other information. Wis. Stat. § 301.45(2)(f). If any of the required information changes, the offender must notify the DOC within ten days. Wis. Stat. § 301.45(4).

Generally, offenders must provide the required information to DOC upon being placed on supervision, released from prison or entering the state and must comply with the registry requirements on an annual basis for 15 years after confinement or probation. Wis. Stat. §§ 301.45(3)(b)(1), 301.45(5)(a)(1). However, offenders who have been convicted of a violent sexual assault or multiple sexual offenses must register for life and verify the information every 90 days. Wis. Stat. §§ 301.45(5)(am)(2)(1) and 301.45(3)(b)(1m). A sex offender who knowingly fails to comply with the foregoing requirements is subject to criminal prosecution. In addition, an offender who moves, goes to school or obtains employment in another state must notify the DOC at least ten days before the move or change in school or employment so that DOC can inform the offender of that state's registration requirements and notify the state's agency responsible for registration of the impending move or change. Wis. Stat. § 301.45(4m). Finally, the statute authorizes the DOC to require any person who must register to pay an annual fee not to exceed $100 to partially offset the cost of monitoring them. Wis. Stat. § 301.45(10). Based on their previous convictions, both Plaintiffs are subject to the lifetime registration requirements.

Wis. Stat. § 301.46 governs access to sex offender registry information. The statute requires DOC to immediately notify law enforcement agencies serving in the community or county where a registered sex offender resides, works or attends school of the registrant's basic identifying information. Wis. Stat. § 301.46(2)(a). The victim of the offender's crime, or the family of the victim, must be notified, as well. Wis. Stat. § 301.46(3). Upon request, the information must also be provided to the police chief or sheriff of other communities or counties. Wis. Stat. § 301.46(2)(d). A police chief or sheriff may then provide such information to various other entities such as schools, government agencies, licensed care and treatment providers, neighborhood watch programs, Boy and Girl Scout groups and any other nonprofit approved by DOC. Wis. Stat. § 301.46(4). As of June 1, 2001, sex offender registration information, including a photo of the offender, became available to the public on the internet. Wis. Stat. § 301.46(5n). The DOC website also indicates whether the listed sex offender is in compliance with the registration requirements. The stated purpose of placing the information online was to allow the public to obtain basic information about sex offenders that the DOC “determines is necessary to protect the public.” Wis. Stat. § 301.46(5n)(a). In addition to the DOC's own website, a company called Family Watchdog, Inc., by agreement with DOC, operates its own website which performs monitoring, mapping and tracking function on registered sex offenders. After a one-time request is made to get “alerts” as to sex offenders, either specifically by name or generally as a class, Family Watchdog automatically sends the requester alerts on his or her computer, smartphone, or other text-capable electronic communication device.

In addition to the registration and notification statutes, the Wisconsin legislature also enacted several statutes that make it a crime for individuals previously convicted of sex offenses to engage in certain activities. A sex offender who is required to register, for example, is prohibited from changing his name or identifying himself by a name different than one by which he is identified with the DOC. Wis. Stat. § 301.47. A person who has been convicted of a...