Mueller v. Raemisch

• Decision Date: 24 January 2014
• Docket Number: 13–1233.,Nos. 13–1225,s. 13–1225
• Citation: 740 F.3d 1128
• Parties: Tobin J. MUELLER and Gregory D. Deangelis, Plaintiffs–Appellees/Cross–Appellants, v. Rick RAEMISCH, Secretary of the Wisconsin Department of Corrections, et al., Defendants–Appellants/Cross–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

740 F.3d 1128

Tobin J. MUELLER and Gregory D. Deangelis,^* Plaintiffs–Appellees/Cross–Appellants,

v.Rick RAEMISCH, Secretary of the Wisconsin Department of Corrections, et al., Defendants–Appellants/Cross–Appellees.

Nos. 13–1225, 13–1233.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 12, 2013.

Decided Jan. 24, 2014.

Negative Treatment Reconsidered

W.S.A. 301.45

Laurence Jacques Dupuis, Attorney, American Civil Liberty Union of Wisconsin, James A. Walrath, Attorney Milwaukee, WI, for Plaintiffs–Appellees/Cross–Appellants.

Anthony D. Russomanno, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Defendants–Appellants/Cross–Appellees.

Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.

POSNER, Circuit Judge.

Before us are cross-appeals in a case in which two convicted sex offenders challenge aspects of Wisconsin's statutory scheme of sex offender registration, notification, and monitoring as violating the prohibition in Article I, section 10 of the federal Constitution against states' enacting ex post facto laws, that is, retroactive criminal punishments. The scheme, which we'll call the monitoring act, was enacted after the plaintiffs committed and were convicted of the sex offenses that made them subject to it, though before they'd finished serving their sentences.

The district judge disposed of the case on summary judgment. 895 F.Supp.2d 897 (E.D.Wis.2012). He ruled that the $100 annual registration fee that the monitoring act imposes on convicted sex offenders such as these plaintiffs is a fine, which is a form of punishment and so cannot constitutionally be imposed on persons who committed their sex crimes before the fee provision was enacted. Id. at 909. He upheld the other provisions of the act. Id. at 913. The state appeals his ruling on the registration fee, and the plaintiffs his ruling upholding the act's other provisions that they had challenged.

Plaintiff Mueller, who now lives in Connecticut, had been convicted in Wisconsin in 1993 of two counts of sexual contact with a girl under 16 when he was 37 years old. He had been sentenced to four years in prison (but that part of his sentence had been suspended) followed by six years of probation, which he completed without incident in 1999. He is married and has four adult children. Plaintiff Deangelis, who lives in Florida, had been twice convicted in Wisconsin of sexual assaults, one that he had committed in 1985 (when he was 20 years old) and the other in 1993. He was sentenced to five years in prison the first time and one year the second time. Recently widowed, he has two young children, one adult child, and several stepchildren (children of his deceased wife).

The Supreme Court upheld a similar sex offender monitoring act (Alaska's) in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); see also American Civil Liberties Union of Nevada v. Masto, 670 F.3d 1046, 1052–53 (9th Cir.2012); Doe v. Bredesen, 507 F.3d 998, 1005 (6th Cir.2007); A.A. ex rel. M.M. v. New Jersey, 341 F.3d 206, 213–14 (3d Cir.2003); cf. United States v. Leach, 639 F.3d 769, 773 (7th Cir.2011). But Wisconsin's monitoring act contains impositions and restrictions not found in Alaska's act. The registration fee is one. Others include a prohibition against working or volunteering in jobs that would require the offender “to work or interact primarily and directly with children under 16 years of age,” Wis. Stat. § 948.13(2)(a) (this provision applies only to child sex offenders, however, and therefore not to Deangelis); filming or photographing children under 17 without the written, informed consent of the children's parents or guardians, § 948.14(2)(a); and changing one's name, or using a name other than the name by which one is designated in the records of the Wisconsin Department of Corrections, § 301.47(2). Other lifetime impositions and prohibitions challenged by the plaintiffs are having to give notice of any change of address before moving to the new address; having to report all email addresses, websites, and internet screen names; and having to respond to all correspondence from the Department of Corrections by mail within 10 days. §§ 301.45(2)(a)(6m), (2)(g), (4m).

Not only do the plaintiffs no longer live in Wisconsin; they say they don't intend ever to return to that state, however briefly. And they don't express concern that if they were on a flight to Chicago diverted for reasons of weather to Milwaukee, they might fall into the clutches of the Wisconsin Department of Corrections for failure to comply with some provision of the monitoring act. What then have they to gain from a decision invalidating the act? If nothing, the district court had no jurisdiction over their suit.

No issue of standing was raised in the district court, or in the briefs in this court that the parties filed initially; and so we asked the parties to advise us “whether the plaintiffs have standing to sue in federal court under Article III of the Constitution, given that neither plaintiff is domiciled, lives, works, attends school, or is physically present in Wisconsin. The answer may depend on (a) whether Wisconsin requires non-residents who lack a current connection with the state to register with its system; (b) whether Wisconsin's criminal provisions governing registered sex offenders, including Wis. Stat. § 301.47 (prohibiting registered sex offenders from changing their names), § 948.14 (restricting registered sex offenders from photographing children), and any other substantive restrictions apply as a matter of state law to conduct that occurs wholly outside Wisconsin by non-residents with no current connection to the state; (c) whether, if present in state law, either a duty to register or substantive limitations on registrants' conduct would be unconstitutionally extraterritorial; and (d) whether—however the foregoing questions are answered—the state's threat to prosecute the plaintiffs itself creates standing.”

The state advises us that “where, as here, a registrant commits the covered sex offense in Wisconsin and then moves out of state, the law requires continued registration” until their death if, like the plaintiffs in this case, their crimes “trigger[ed] lifetime registration.” The registration requirement can, the state argues, be applied to persons with no current connection to Wisconsin without violating the principle that a state cannot in general regulate conduct that occurs outside its borders, see, e.g., State v. Cardwell, 246 Conn. 721, 718 A.2d 954, 963 (1998); People v. Blume, 443 Mich. 476, 505 N.W.2d 843, 845–46 (1993); Simpson v. State, 92 Ga. 41, 17 S.E. 984, 985 (1893), because Wisconsin residents retain an interest in keeping track of past sex offenders wherever the offenders now live. For example, it may help restore peace of mind to the victim of a sex offense to learn where the offender is living—or induce precautionary measures if the victim discovers that the offender, although no longer a Wisconsin resident, lives just across the Wisconsin border, in Michigan, Illinois, Iowa, or Minnesota.

Whether Wisconsin is right or wrong in arguing that it has constitutional authority to enforce its registration requirement against nonresidents is not the immediate issue, however. For there to be standing, it is enough that the state intends to enforce the requirement against the plaintiffs and that its grounds for thinking it has the constitutional authority to do so are not so preposterous that the plaintiffs can simply ignore the state's threat to prosecute them if they don't keep on registering annually till death shall part them from the Wisconsin registry of sex offenders. The plaintiffs have received frequent letters from the Department of Corrections reminding them that they must comply with the registration requirements for life and that failure to do so is a felony. So there is some danger they'll be prosecuted if they fail to comply, and a threat of harm is sufficient to confer standing to sue, Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298–99, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); 520 South Michigan Ave. Associates, Ltd. v. Devine, 433 F.3d 961, 963 (7th Cir.2006), while their decision to pay the $100 annual fee is a rational response to the threat and is therefore an actual harm caused them by the challenged law.

The state acknowledges limitations on its power to punish violations of other provisions of the monitoring act, such as working with and photographing minors. Wisconsin law provides that a person is subject to “prosecution and punishment” for conduct that occurs wholly outside the state only if, so far as bears on this case, “the person does an act with intent that it cause in this state a consequence set forth in a section defining a crime.” Wis. Stat. § 939.03(1)(c). This provision applies straightforwardly to the registration requirement, because a nonresident's failing to comply has a criminal consequence in Wisconsin—namely a failure to register with the state's Department of Corrections. But the state acknowledges that “the plaintiffs could not be prosecuted for wholly out-of-state acts of working with minors, or of intentionally capturing a representation of a minor. The defendants are not aware of a prosecution having been attempted under these statutes for wholly out-of-state conduct” (citations omitted). The state further acknowledges that “no prosecution would occur going forward, if the conduct was wholly out of state.” And the plaintiffs do not allege any intention of engaging in conduct in Wisconsin that would have “a consequence set forth in a section defining a crime.” The combination of disclaimers by the state and disclaimers by the plaintiffs negates standing to challenge these two provisions of the monitoring act. Compare Mink v. Suthers, 482 F.3d 1244, 1254–55 (10th Cir.2007), with St. Paul Area Chamber of Commerce v. Gaertner...