WI: 7th Circuit Rules Residency Restriction is Retroactive

The Seventh Circuit Court of Appeals issued a decision today in which it declared retroactive a law in The Village of Hartland, Wisconsin, that severely limits the number of registrants who can reside in that town.  Today’s decision signaled a reversal of that Court’s prior decisions which held that a new law can be applied to individuals convicted of a sex offense prior to the passage of that law.

The Court noted that its ruling today meets the requirements of only one of the two requirements necessary to determine that the village’s law violates the ex post facto clause of the U.S. Constitution.  The case therefore has been returned to the trial court to determine whether the village’s law is also punitive.  

“The Seventh Circuit Court of Appeals issued an important decision today when it recognized that a new law that attaches new legal consequences to events completed before that law is indeed retroactive,” stated ACSOL Executive Director Janice Bellucci.  “The same court left open whether such a law is also punitive.”

In today’s decision, the Court noted that individuals convicted of a sex offense prior to the village’s new law face “additional burdens that did not exist at the time of these offenses, that is, they cannot establish residence in the Village of Hartland.”  The Court recognized that in today’s decision the Court was overturning several previous decisions, regarding laws in other cities and states.  

An attorney representing the registrant in this case is Adele Nicholas, who is a former member of the ACSOL Board of Directors.  Ms. Nicholas resigned from the ACSOL Board of Directors in order to avoid a conflict of interest when she took the position of Executive Director of Illinois Voices.

Koch v. Village of Hartland – 7th Cir – Ex post facto – Aug 2022.pdf


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Fantastic! Congratulations to Ms. Adele Nicholas!

At least these people have a lick of sense in their heads. Which is more than what we can say for the rest of the country.

“In a stunning reversal, court recognizes the strikingly obvious!” 🙄 Amazing. As Janice notes, “that a new law that attaches new legal consequences to events completed before that law [was enacted] is indeed retroactive”.

I am rather astounded that they had previously come to a different conclusions.

Sadly, I suspect that, as usual, they will say the residency restriction is merely civil and administrative, but not punitive. 😒

Nice job, Adele. Residential restrictions serves precisely the intent behind incarceration. Otherwise stated, the first intent is to remove them from the community. Given it is a suspect reversal, which we’ve seen before– I call it hedging, is suspect the “Joliet, Il. pocket park” story is front and center in their minds. IMO Like NCvPackingham, the displayed “lawful wholesale ban” lays bare the underlying intent behind the creation of the electronic Notification Act in the first place.
If it is determined the ordinance is punitive, it also has implications for the whole of the Act.

Courts seem to be recognizing that municipalities are crossing the line into the area of punitive actions. I hope this bodes well for the upcoming SORNA complaint.

Interesting. Decided by Bush, Trump, and Biden appointees.

My God. It seems the court got hit in the head with a Captain Obvious stick and knocked some common sense in their brains. Now that it has been deemed a violation of the ex post facto clause, how can the lower court not see that this law is punitive? Maybe the lower court needs a good whacking with a Captain Obvious stick as well.

Going to be interesting to see what they use and determine as punitive vs administrative/regulatory. Judge Matsch, RGB, et al saw what society negatively did with the law as punitive but unless it is legislated that way, it appears it is not. The legislative intent was to prevent people from living there because of who they are classified as; therefore, it is punitive by the basic definition because regulatory could be seen a discriminatory (though the courts don’t agree with that).

I have yet to read the decision itself, but this snippet from above sure caught my eye:

In today’s decision, the Court noted that individuals convicted of a sex offense prior to the village’s new law face “additional burdens that did not exist at the time of these offenses, that is, they cannot establish residence in the Village of Hartland.” 

There is (or should that be are?) a plethora of obligations beyond establishing a residence (which is not a right, sayeth SCOTUS) that have been forced upon PFRs. This seems to be a very nice crack in the dike. It also has me wondering if the change in position from ALI had any influence. There are likely to be a few 7th CCoA judges who are part of that group.

Yet this same court will apply retroactive status for registrants to have to wear ankle bracelets because of some dumb guideline passed decades after they were tried, convicted, and served out their entire time. So sorry, I don’t give this court any brownie points.

I’d like to see anywhere in the Constitution or Law that says the Ex Post Facto clause excludes certain types of laws.
A Law is a Law whether remedial or punitive.
Where does it say anywhere that Ex Post Facto does not apply to what is deemed a remedial law?
A remedial law is still a law.

As good as the ruling is (actually a big “DUH!” with regard to retroactive status), I hope that the punitive issue is also resolved in our favor, as that would appear to be an even bigger win that can have implications nationally as well.