A small Wisconsin town’s attempt to ban more sex offenders from living there flunks one of two tests that would make it unconstitutional, a federal appeals court has ruled.
The decision sent the matter back to a lower court for argument about the second test, and whether the local law should be thrown out.
Hartland adopted an ordinance in 2018 after it felt it had more offenders per capita than other Waukesha County communities. A sex offender who wanted to move there sued, claiming the ordinance amounted to an ex post facto law. Such laws, specifically prohibited in the U.S. Constitution, punish conduct that occurred prior to a law’s passage.
A judge dismissed the case, agreeing with the village that the law applied only to new conduct after it was passed — like moving to Hartland as a sex offender.
Under that analysis, the plaintiff argued, a town could force out people with past convictions by imposing new penalties triggered by even passive or innocuous current acts without worry of running afoul of the ex post facto clause.
The 7th U.S. Circuit Court of Appeals, however, said it was overturning its own legal precedents upon which the district judge relied.
Hartland’s ordinance is retroactive, the court ruled.
“The Village advances the startling argument that because the Ordinance is ‘temporary,’ it cannot be retroactive. Assuming with skepticism that a four-year ban is still temporary, we fail to see how an allegedly shorter deprivation of a constitutional right has any bearing on our analysis,” the decision reads. “This imaginative position from the Village borders on the frivolous and can be quickly dismissed.”
Seventh Circuit Announces a New Standard for Analyzing Violations of the Ex Post Facto Clause [natlawreview.com 8/24/22]
Of course it does. It’s banishment. A punishment long held unconstitutional.
I’ve had a question from the earliest days of these residency restrictions…
From where does a municipality get the authority to determine who may or may not reside in the municipality?
Here in Wisconsin I’ve heard people explain this with the “Home Rule” theory, but it just makes no sense that any jurisdiction has the authority to banish people. Can anyone explain why these banishments aren’t unconstitutional on their face, whether retroactive or not?
One of the things in many Wisconsin jurisdiction’s residency restrictions is a clause which states that no one who was not a resident at the time of their offense can establish residency if on the so registry, effectively a banishment.
The end result is that people like me are basically stuck in our current home. I’m grandfathered in my current home but even my own town has an ‘original domicile’ rule meaning that I cannot establish a new residence here because I wasn’t living here at the time of my offense. The surrounding towns all have similar clauses in their rules which mean I can’t move there, and the town where I committed my offense has rules against me moving there as I’d like too close to my victim’s family.
But I just can’t figure out how any jurisdiction gets to choose its citizens.
We gotta start throwing events and charge people at the door to hear Janice speak, people in California are spoiled I think ACSOL should start charging for all there services and everybody should have to subscribe to in order to comment on this website.
Its time to start organizing membership that way we know who’s who when they comment amongst us.