State v. Smith, No. 2008AP1011-CR.

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: The decision of the court of appeals is affirmed
• Citation: 780 N.W.2d 90,2010 WI 16
• Decision Date: 19 March 2010
• Docket Number: No. 2008AP1011-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. James W. SMITH, Defendant-Appellant-Petitioner.

780 N.W.2d 90
2010 WI 16

STATE of Wisconsin, Plaintiff-Respondent,
v.
James W. SMITH, Defendant-Appellant-Petitioner.

No. 2008AP1011-CR.

Supreme Court of Wisconsin.

Argued September 15, 2009.

Decided March 19, 2010.

780 N.W.2d 91

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780 N.W.2d 92

For the defendant-appellant-petitioner there were briefs and oral argument by Shelley M. Fite, assistant state public defender.

For the plaintiff-respondent the cause was argued by Rebecca Rapp St. John, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

¶ 1 ANNETTE KINGSLAND ZIEGLER, J.

This is a review of a published decision of the court of appeals,¹ which affirmed the decision of the Brown County Circuit Court, Richard J. Dietz, Judge. The circuit court concluded that Wis. Stat. § 301.45 (2005-06),² Wisconsin's sex offender registration statute, was constitutional as applied to Smith and denied Smith's motion to dismiss the charge of failure to comply with sex offender registration. Smith appealed and the court of appeals affirmed the circuit court's decision. Smith petitioned this court for review, which we accepted. We affirm the court of appeals' decision.

¶ 2 This case requires us to decide whether Wis. Stat. § 301.45, Wisconsin's sex offender registration statute, is unconstitutional as applied to Smith on the grounds that it violates his substantive due process and equal protection rights. We conclude that Wis. Stat. § 301.45 is constitutional as applied to Smith because requiring Smith to register under § 301.45 is rationally related to a legitimate governmental interest. Smith has failed to prove that the registration requirements of § 301.45 as applied to him are unconstitutional beyond a reasonable doubt.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On March 12, 2001, Smith pled guilty to the charge of false imprisonment in violation of Wis. Stat. § 940.30 (1999-2000).³

780 N.W.2d 93

According to the criminal complaint, Smith and others forced a minor to ride around with them in a vehicle in order to collect a drug debt from the minor's friend. Even though the complaint alleges that Smith and at least one other person physically threatened the minor in order to force him to assist in the search, there is no allegation that the false imprisonment entailed anything sexual

¶ 4 However, under the unambiguous language of Wis. Stat. § 301.45, Smith is required to register as a sex offender because he was convicted of false imprisonment of a minor.⁴ Because he failed to so

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register, Smith was charged on December 14, 2005, with violating Wis. Stat. § 301.45(2)(g).⁵

¶ 5 On March 15, 2006, Smith brought a motion to dismiss the charge of failure to comply with sex offender registration on the basis that, as applied to him, the sex offender reporting requirements of Wis. Stat. § 301.45 violate his due process and equal protection rights under the United States and Wisconsin Constitutions because the crime he committed was not sexual. After a hearing on April 20, 2006, the circuit court denied the motion and concluded that § 301.45 was constitutional as applied to Smith.

¶ 6 Smith then filed an interlocutory appeal, which was denied by the court of appeals on June 30, 2006. On April 26, 2007, Smith pled guilty to a violation of Wis. Stat. § 301.45(2)(g) for his failure to provide the registration information required as a result of his conviction for a "sex offense."⁶ He was sentenced to one year of confinement followed by one year of extended supervision.

¶ 7 Smith appealed his conviction to the court of appeals and challenged the constitutionality of the sex offender registration statute as applied to him. The court of appeals affirmed the circuit court's decision that Wis. Stat. § 301.45 was constitutional as applied to Smith. After first rejecting Smith's assertion that sex offender registration interferes with fundamental liberty interests,⁷ the court of appeals concluded that § 301.45 was constitutional as applied to Smith because "there is a rational basis for the distinctions created by the legislature, the means specified in the statute, and the legislative goals of the

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statute."⁸ On March 18, 2009, this court accepted Smith's petition for review. We now affirm the court of appeals' decision and conclude that § 301.45 is constitutional as applied to Smith

II. STANDARD OF REVIEW

¶ 8 The constitutionality of a statute is a question of law, which this court determines independently of both the circuit court and the court of appeals but still benefitting from their analyses. See State v. Weidner, 2000 WI 52, ¶ 7, 235 Wis.2d 306, 611 N.W.2d 684; State v. Janssen, 219 Wis.2d 362, 370, 580 N.W.2d 260 (1998). A statute enjoys a presumption of constitutionality. Janssen, 219 Wis.2d at 370, 580 N.W.2d 260. To overcome that presumption, a party challenging a statute's constitutionality bears a heavy burden. State v. Cole, 2003 WI 112, ¶ 11, 264 Wis.2d 520, 665 N.W.2d 328. It is insufficient for the party challenging the statute to merely establish either that the statute's constitutionality is doubtful or that the statute is probably unconstitutional. Id. Instead, the party challenging a statute's constitutionality must "prove that the statute is unconstitutional beyond a reasonable doubt." Id.

¶ 9 In this case, Smith claims that Wis. Stat. § 301.45, Wisconsin's sex offender registration statute, is unconstitutional as applied to him. Therefore, Smith must prove that as applied to him, § 301.45 is unconstitutional beyond a reasonable doubt.

III. ANALYSIS

¶ 10 Smith argues that Wis. Stat. § 301.45 is unconstitutional as applied to him because it requires him to register as a sex offender even though his underlying conviction for false imprisonment of a minor was not of a sexual nature. Smith acknowledges, however, that § 301.45 serves a legitimate state interest, and accordingly, he does not raise a facial constitutional challenge to the statute.⁹ Rather, he argues that § 301.45 is unconstitutional as applied to him because requiring him to register is irrational, arbitrary, and cannot be rationally related to any legitimate government interest.¹⁰ Smith asserts that the purpose of the statute is to protect the public from sex offenders and since he was not convicted of an offense that was sexual, he cannot be required to register under § 301.45.

¶ 11 We disagree with Smith and conclude that Wis. Stat. § 301.45 does not violate his substantive due process or equal protection rights. Smith has failed to prove beyond a reasonable doubt that as applied to him, the sex offender registration requirements are arbitrary or irrational.

¶ 12 "This court has held the due process and equal protection clauses of the Wisconsin Constitution are the substantial

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equivalents of their respective clauses in the federal constitution." State v. McManus, 152 Wis.2d 113, 130, 447 N.W.2d 654 (1989) (citing State ex rel. Cresci v. Schmidt, 62 Wis.2d 400, 414, 215 N.W.2d 361 (1974)). Whether reviewing substantive due process or equal protection, the threshold question is whether a fundamental right is implicated or whether a suspect class is disadvantaged by the challenged legislation. If either is the case, the challenged legislation must survive strict scrutiny. In the present case, the parties agree that a fundamental right is not implicated and that a suspect class is not disadvantaged. Thus, the challenged legislation is not subject to a strict scrutiny review; rather, we undergo the more deferential, rational basis review. When neither a fundamental right has been interfered with nor a suspect class been disadvantaged as a result of the classification, "the legislative enactment `must be sustained unless it is "patently arbitrary" and bears no rational relationship to a legitimate government interest.'" McManus, 152 Wis.2d at 131, 447 N.W.2d 654 (quoting Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973)). In this as applied challenge, rational basis analysis requires us to search for any facts upon which the legislation reasonably could be applied to Smith.

¶ 13 As explained herein, requiring Smith to register as a sex offender is rationally related to the state's legitimate interest in protecting the public, including children, and assisting law enforcement. Requiring Smith to register, even though his conviction for false imprisonment was not of a sexual nature, is rationally related to the government interest in protecting the public and assisting law enforcement because: (1) false imprisonment has been linked to the commission of sexual assault and violent crimes against children; (2) an offender's sexual motive or intent may be difficult to prove or determine within the context of false imprisonment; and (3) false imprisonment places the minor in a vulnerable position because the offender, rather than the minor, has control over the minor's body and freedom of movement. The legislature chose to require registration by those, like Smith, who commit the crime of falsely imprisoning a minor, regardless of whether that crime is of a sexual nature. We must afford deference to the words chosen by the legislature and cannot conclude that there is no legitimate government interest in requiring registration of such offenders.

A. Substantive Due Process and Equal Protection-Rational Basis Analysis

¶ 14 "The touchstone of due process is protection of the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). "Due process `bars certain arbitrary, wrongful government actions.'" State v. Quintana, 2008 WI 33, ¶ 80, 308 Wis.2d 615, 748 N.W.2d 447 (quoting State v. Radke, 2003 WI 7, ¶ 12, 259 Wis.2d 13, 657 N.W.2d 66). "Substantive due process forbids a government from exercising power without any reasonable justification in the service of a legitimate governmental...