City of South Milwaukee v. Kester
2013 WI App 50
| Wis. Ct. App. | 2013Background
- Kester was convicted in 2000 of second-degree sexual assault of a child.
- In April 2010, he moved within 1000 feet of a public elementary school in South Milwaukee, violating a local ordinance.
- The City amended the residency to a public nuisance and sought injunctive relief to require him to move.
- The circuit court granted the injunction and partial summary judgment finding residence within 1000 feet per se a nuisance.
- Kester appealed arguing lack of individualized danger assessment, due process, preemption, and violation of Double Jeopardy and Ex Post Facto clauses; the court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether residency near a school is a nuisance per se under the Ordinance | Kester argues need for a factual risk assessment of nuisance | City contends statute defines nuisance per se by status and proximity | Yes; Ordinance constitutes nuisance per se when criteria are met |
| Whether due process requires an individualized hearing | Kester claims right to hear evidence of non-dangerousness | Ordinance uses per se criteria; no individualized risk hearing necessary | No; per se framework provides due process without individual risk hearing |
| Whether the Ordinance is preempted by state law | Statewide scheme preempts local residency restrictions | Home-rule allows additional restrictions consistent with state law | No; not preempted; reasonable local regulation in line with statewide concern |
| Whether the Ordinance violates Double Jeopardy or Ex Post Facto | Ordinance imposes punitive consequences for past crime | Ordinance is civil regulatory designed to protect public safety | No; ordinance is civil, not punitive; complies with both clauses |
Key Cases Cited
- State v. Quality Egg Farm, Inc., 104 Wis. 2d 506 (Wis. 1981) (defines nuisance and substantial interference standard)
- In re Eldred, 46 Wis. 530 (Wis. 1879) (nuisance per se concept; no injurious need required)
- Boden v. City of Milwaukee, 8 Wis. 2d 318 (Wis. 1959) (nuisance per se, oppressiveness/unreasonableness standard for interference)
- Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58 (Wis. 2004) (standards for interpreting statutes and ordinances; no individualized risk needed)
- State v. Rachel, 254 Wis. 2d 215 (Wis. 2002) (two-part intent-effects test for punitive vs civil sanctions)
- Smith v. Doe, 538 U.S. 84 (U.S. 2003) (relevance of whether law is punitive vs civil in classification)
- Kennedy v. Mendoza-Martinez, 372 U.S. 144 (U.S. 1963) (nonexhaustive factors for punitive vs civil sanctions)
- State v. McMaster, 206 Wis. 2d 30 (Wis. 1996) (procedural standards for punitive vs civil analysis)