In Wisconsin: Important Seventh Circuit Decision on the Ex Post Facto Clause

By Adele Nicholas . . . We achieved a small but important victory in the Seventh Circuit this week. The Seventh Circuit found that a municipal ordinance enacted by the Village of Hartland, Wisconsin, that banned registrants from establishing a home in the Village is retroactive within the meaning of the ex post facto clause. The ruling opens an important avenue for persons with past convictions to challenge burdensome restrictions that are regularly heaped on them by local government entities that would like to banish them from their communities.

The case overturns a rule concerning “retroactivity” adopted by the Seventh Circuit in 2011.  In order to prevail on an ex post facto claim, a plaintiff must prove both that a law is “retroactive” and that it is “punitive.”  In the 2011 case United States v. Leach, 639 F.3d 769, 773 (7th Cir. 2011), the Seventh Circuit held that the federal Sex Offender Registration and Notification Act was not “retroactive” as applied to a person convicted of his offense prior to its enactment. The Court’s logic was that the registration requirement only applied to “conduct occurring after the law’s enactment—that is, a sex offender’s failure to register or update his registration following interstate travel.” The Court applied this “retroactivity” rule again in the 2018 case Vasquez v. Foxx, holding that an Illinois statute that prohibits individuals classified as “child sex offenders” from living within 500 feet of home day cares was not retroactive because it applied “only to conduct occurring after its enactment—i.e., knowingly maintaining a residence within 500 feet of a child day-care home or group day-care home.”

These decisions greatly hampered our ability to pursue ex post facto challenges because almost any law could be characterized as “prospective,” even when applied to persons convicted long before the statute was passed. We believed the decision to be inconsistent with decisions of the U.S. Supreme Court and other jurisdictions that have considered the issue.

We sought to challenge that interpretation of “retroactivity” by bringing an ex post facto challenge to a municipal ordinance in Hartland, Wisconsin, which established a “moratorium” prohibiting registrants from establishing a residence anywhere in the Village. The district court granted summary judgment to the Village on the basis of “retroactivity,” and we appealed.

In the decision entered by the Seventh Circuit on Monday, August 8, the Seventh Circuit overturned the retroactivity rule from Leach and Vasquez and finally brought our circuit in line with the Supreme Court and other jurisdictions to have looked at the issue. The Seventh Circuit found that Hartland’s ordinance was retroactive because it “attached new legal consequences” to a crime committed before the enactment.

The case doesn’t resolve the question of whether Hartland’s ordinance is punitive (the second part of the ex post facto analysis), and we will now go back to the district court to prove our case that a ban on residing in the community is not a legitimate regulation but rather an impermissible punishment.

My law partner and co-counsel on the case is Mark Weinberg. We have been working together on behalf of registrants in the Midwest for the past seven years, and we’re heartened by this win!

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18 Thoughts to “In Wisconsin: Important Seventh Circuit Decision on the Ex Post Facto Clause”

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  1. Tim in WI

    This opens a door for WI ex post registrants in the context of FTR in local district courts. Importantly the WI legislative branch Did not assign the admin of SOR to the DOC. That choice was made by the administration in charge of the promulgation at the time just after the law was signed. K was also the same administration who chose the date December 25, 1993. He made that choice sometime in 1995, thus the statute was retrospective – looking backwards. Residential restrictions are easily proved punitive because they serve the same intent and effect as incarceration is meant to remove the convicted from the public. Proving registration punitive is much harder to do but rests squarely in the form of indentured servitude.

  2. AJ

    Surprise surprise. The courts threw us a Bone. Small win for sure. But from 1996 on, it has been one rule change or another in Wisconsin. In fact, changing the rule from 10 yrs registration, or length of parole (enacted 1997 actually) to LIFETIME, with just some case review, no due process. Constitutes Ex Post Facto. But not according to the same group who just shot down an ordinance. Go figure..

    1. Tim in WI

      AJ state gets civil room via the standard waiver of civil right agreed to, and signed. There is always the choice on any given criminal indictment for every citizen every time.. The 9-0 ruling in Connecticut DPS was had on that factual waiver basis ALONE! A review reveals the Rehnquist court’s use of the phrase “…similarly situated individuals… “.
      Having stated that, human upkeep of property is not without history.

  3. Jerry

    All the laws created that are supposed to protect children are all based on lies. It has been shown that sex offenders in general have the lowest recidivism rate of all offenses besides murder. A certain public figure that spreads conspiracies and lies was recently sued by the parents of a student that was killed in a school shooting. The parent won a judgment against the defendant for 42 million dollars. The news media is also responsible for spreading disinformation regarding so called predators and their recidivism rates. This is why so many new laws and restrictions are constantly being signed into law that are violating the constitutional rights of people who have paid their debt to society. Isn’t time that a major law suit is bought against those responsible for spreading disinformation and causing our God given rights to be violated.

    1. Tim in WI

      The lies you describe were known to the founders. They made great efforts to purposely separate the federal and state police powers perpetuity. The “day to day lives of the citizens” was left to the States power. The lies evolve from necessities of the larger fed which has expanded its reach into the day to day. The real costs of D.C..

  4. Anonymous

    Buchanan v. Warley, 245 U.S. 60

    Residential Segrigation interferes with property rights.

    1. Tim in WI

      You are on to something but some do not wish to see the database as plain old property. Somebody needs database property to be considered special and treated differently. Just like producers and purveyors of opiate based pain pills benefited from being treated differently, so does the purveyors of big data.

    2. Tim in WI

      Correctly stated sir. It’s always about “property” rights. For the database driven infrastructure is indeed property, some private, some public, but property none the less. Slavery naturally always includes or involves A notion of “property maintenance.” Some think big tech should be treated differently. but state DOC property is none the less an asset of property. Retroactive residential restrictions closely resemble the intent behind incarceration essentially TO KEEP OUT. However SOR intent is more difficult to prove. Maintaining a presence in prison is different than maintaining a presence on database, nevertheless each are intended to impose affirmative restraint, even when the people deny the extraneous outcomes. Essentially we distinguish the difference between the intelligence of making “the notice itself” and the convenience of ” the notice itself. ” The little boy Who cried Wolf.

    3. mut

      and … it also lowers the marketability of my neighbors property. i suppose they could sue over that. maybe they would rather whine and snivell.

  5. Jim

    Time for all to start another complaint with your court. Time to crowd the courts with complaints. Keep safe and keep your powder dry. Fight.

    1. mut

      i think congress has taken up all the courts time with their internal bickering.


    thnx for sharing this vital info. the current trend of violating the ExPost makes your post an imperative..

    best…. r sheff

  7. rpsabq

    Sending it back to the District Court, asking them to decide if it’s punishment or not….. More delay, more years waiting, more money for lawyers all because Courts don’t want to state the obvious: OF COURSE IT’S PUNISHMENT!

    It’s really starting to be laughable.

    We need to start calling this what it is. A willfull act of denial and a refusal to make the obvious ruling because they know it’s GAME OVER once they start saying the forbidden word: PUNISHMENT.

    1. mut

      providing information through a life long duty to register is worth money to government. private enterprise and the general public so i think its an easement across my liberty — a servitude — plainly prohibited by the 13th amendment.

  8. A Mistake They Made

    The first time a court in this country came to the conclusion that the registry was punishment it should have cause a domino effect that changed all 50 states. The fact that they did not all change means they are vindictively doing it to us on purpose. I just finished my 10 year registration this year for a conviction I was not guilty of. I served the entire sentence including the extended registry punishment, and social life/financial destruction. I was convicted of something that was legal at the time I did it, this is why I did it as well because I thought I could. They passed a new law making it illegal while I was serving my time. My hatred of the system is off the scale already. If they choose to turn around in the future and change my registration status they will have a fight on their hands. They have already made a permanent enemy in me. I am invested in the destruction of the Sex Offender Registry with all I have. I don’t have to play defense anymore!

  9. John

    Why MUST every defendant PROVE that these Registration Laws violated the Ex Post Facto and that the Registration is punitive? Should not case law already be established in this regard?
    If i violate any of 30+ requirements of the Civil requirement, I will be charged with a Class C criminal FELONY, including not paying fees.. which is the eqiv. of debtors prison long ago abolished by SCOTUS.

  10. mut

    stunned at how they twist and turn. glad you straightened em out. great job!