Koch v. Vill. of Hartland
| Decision Date | 08 August 2022 |
| Docket Number | 22-1007 |
| Citation | 43 F.4th 747 |
| Parties | Karsten KOCH, Plaintiff-Appellant, v. VILLAGE OF HARTLAND, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Adele D. Nicholas, Mark G. Weinberg, Attorneys, Law Office of Adele D. Nicholas, Chicago, IL, for Plaintiff-Appellant.
Joseph M. Wirth, Attorney, Schmidt & Wirth Law Offices, Milwaukee, WI, for Defendant-Appellee.
Before St. Eve, Kirsch, and Jackson-Akiwumi, Circuit Judges.
The Village of Hartland, Wisconsin ("the Village") passed an Ordinance ("the Ordinance") placing a moratorium against any new sex offenders residing there, whether on a temporary or permanent basis. Karsten Koch is a registered sex offender who would like to move into the Village to be closer to work and family. He sued the Village over the Ordinance, asserting that it violated the Ex Post Facto Clause of Article I, Section 10 of the Constitution.
A law must be both retroactive and penal to transgress the Ex Post Facto Clause. Ruling for the Village on cross-motions for summary judgment, the district court concluded that the retroactivity rule from two Seventh Circuit opinions— United States v. Leach , 639 F.3d 769 (7th Cir. 2011) and Vasquez v. Foxx , 895 F.3d 515 (7th Cir. 2018) —controlled. Under this precedent, a law is not retroactive, and therefore cannot violate the Ex Post Facto Clause, if it applies "only to conduct occurring after its enactment." Id. at 520. The Ordinance, then, applied prospectively, and there was no need to determine whether it was also penal.
While the district court faithfully applied circuit precedent, we no longer believe the Leach - Vasquez rule governing retroactivity is tenable. We reverse and remand; the Ordinance is retroactive. The district court, on remand, must consider in the first instance whether it is "punitive."
At the time the Ordinance went into effect, Hartland's saturation level was 6.75.
According to the Ordinance's "findings and intent" section, the Village recently learned that there were thirty-five sex offenders living within the Village, an allegedly high number compared to neighboring areas. The ordinance was a "regulatory measure aimed at protecting the health and safety of the children of the Village of Hartland from the risk that a convicted sex offender may re-offend in locations close to a Designated Offender's residence ...." The U.S. Supreme Court has "recognized that the risk of recidivism posed by sex offenders is high and when convicted sex offenders re-enter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault." That sex offenders "suffer a high rate of recidivism," the Village believed, "has a basis in fact," and they collectively "are a serious threat to public safety," pose specific dangers to children, and "are more likely to use physical violence." The "potential of psychological trauma to citizens of the Village is real but difficult to calculate."
The Village represents that the moratorium allows local police more time and flexibility in developing its dedicated community policing program to give officers a chance to monitor sex offenders, address experiences, and decrease "recidivism and community conflict." "As a result of the community policing program and the moratorium," the Village maintains, "resident designated offenders have not committed any sex offenses in the Village." The ordinance also gives more time to pass "a sex offender residency ordinance that will satisfy Constitutional requirements."
Koch is a registered sex offender. Before the Ordinance was passed, he was convicted of one count of engaging in repeated acts of sexual assault on a child and two counts of second-degree sexual assault of a child. He served seven years in prison before being released. His convictions qualify him as a "Designated Offender" under the Ordinance.
Since his conviction, Koch has worked to get his life on a positive track. He found employment and now wishes to live in Hartland to be closer to work and family, as the Village provides more suitable rental properties than the town where he currently resides. A property owner was even willing to rent to Koch, but the Village's Ordinance prevents any landlord from doing so. Instead, Koch must continue to live with his parents and commute a longer distance to work.
Koch sued the Village, alleging that the Ordinance deprived him of a constitutional right under the Ex Post Facto Clause by criminally punishing his conduct before its enactment. See 42 U.S.C. § 1983. Both parties moved for summary judgment, and the district court granted the Village's motion. The Ex Post Facto Clause proscribes "retroactive punishment." For a law to violate this protection, it must be retroactive and punitive. The district court only considered the retroactivity prong of the two-part test because two Seventh Circuit opinions— Leach and Vasquez —dictated the outcome. Under our precedent, a law creating only "new, prospective legal obligations" is not retroactive. Therefore, the Ordinance operates only prospectively because it "limits a Designated Offender's housing options based on [ ] prior history." "In other words, the Ordinance only applies to Koch's current desire to move to Hartland." The district court could not "accept Koch's invitation to reject Leach and Vasquez and follow the reasoning employed by other circuits when considering Ex Post Facto Clause challenges." And because the law was not retroactive, the district court did not need to consider whether it punished the targeted offenders.
Koch filed a timely appeal. We review a grant of summary judgment de novo, drawing all reasonable inferences "in the light most favorable to the nonmoving party on each motion." Birch Rea Partners, Inc. v. Regent Bank , 27 F.4th 1245, 1249 (7th Cir. 2022) (quoting Lalowski v. City of Des Plaines , 789 F.3d 784, 787 (7th Cir. 2015) ).
The Constitution provides that "[n]o State shall ... pass any ... ex post facto Law," U.S. Const. art. I, § 10, cl. 1, defined as an act that "retroactively alter[s] the definition of crimes or increase[s] the punishment for criminal" deeds, Cal. Dep't of Corr. v. Morales , 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) ). See also U.S. Const. art. I, § 9, cl. 3 (). "Statutes that transgress the Ex Post Facto Clause [ ] share two characteristics: They are ‘both retroactive and penal.’ " Hope v. Comm'r of Ind. Dep't of Corr. , 9 F.4th 513, 530 (7th Cir. 2021) (en banc) (quoting Vasquez , 895 F.3d at 520 ).
We have held that a regulatory scheme applying "only to conduct occurring after the law's enactment" is merely prospective and thus cannot violate the Ex Post Facto Clause. Vasquez , 895 F.3d at 520. Koch concedes that under current precedent the Ordinance is not retroactive because it targets only future conduct, that is, taking up residency in the Village. Nonetheless, he urges us to overturn this rule, which conflicts with the history and values of the Ex Post Facto Clause, Supreme Court precedent, and the consensus among other circuits and state courts. We take this opportunity to overrule it.1
The Ex Post Facto Clause safeguards the legal principle that there can be no punishment without law, nulla poena sine lege. This maxim has a long history. The Digest of Justinian, a sixth-century codification of Roman law, declared, "The penalty for a past wrong is never increased ex post facto." Robert G. Natelson, Statutory Retroactivity: The Founders' View , 39 Idaho L. Rev. 489, 500 (2003). William Blackstone, in his influential Commentaries on the Laws of England , recounted with horror how the emperor Caligula posted laws that could not be seen by the public and then prosecuted his subjects. 1 William Blackstone, Commentaries *46; see generally Evan C. Zoldan, The Civil Ex Post Facto Clause , 2015 Wis. L. Rev. 727, 737. An ex post facto law, he described, happens when, "after an action is committed," a rogue legislator "for the first time declares it to have been a crime." 1 William Blackstone, Commentaries *46. "It is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust." Id.
Despite this venerable history, Parliament still enacted acts that resembled ex post facto laws. David F. Forte & Matthew Spalding, The Heritage Guide to the Constitution 203. Against this backdrop, the Framers included the Ex Post Facto Clauses in the Constitution. See U.S. Const. art. I, §§ 9–10. These provisions garnered prominent support from early leaders and jurists. James Madison opined that "ex-post-facto laws ... are contrary to the first principles of the social compact, and to every principle of sound legislation." The Federalist No. 44 (James...
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Chatman v. Jeffreys
...see also U.S. CONST. art. I, § 9, cl. 3. “For a law to violate this protection, it must be retroactive and punitive.” Koch v. Hartland, 43 F.4th 747, 750 (7th Cir. 2022). A civil sanction implicates the ex post facto of the Constitution “only if it can be fairly characterized as punishment.......