KARSTEN KOCH, Plaintiff-Appellant, v. VILLAGE OF HARTLAND, Defendant-Appellee.
No. 22-1007
United States Court of Appeals For the Seventh Circuit
ARGUED MAY 27, 2022 — DECIDED AUGUST 8, 2022
Before ST. EVE, KIRSCH, and JACKSON-AKIWUMI, Circuit Judges.
A law must be both retroactive and penal to transgress the Ex Post Facto Clause. Ruling for the Village on cross-motions for summary judgment, the district court concluded that the retroactivity rule from two Sеventh Circuit opinions—United States v. Leach, 639 F.3d 769 (7th Cir. 2011) and Vasquez v. Foxx, 895 F.3d 515 (7th Cir. 2018)—controlled. Under this precedent, a law is not retroactive, and therefore cannot violate the Ex Post Facto Clause, if it applies “only to conduct occurring after its enactment.” Id. at 520. The Ordinance, then, applied prospectively, and there was no need to determine whether it was also penal.
While the district court faithfully applied circuit precedent, we no longer believe the Leach-Vasquez rule governing retroactivity is tenable. We reverse and remand; the Ordinance is retroactive. The district court, on remand, must consider in the first instance whether it is “punitive.”
I.
A.
On September 24, 2018, the Village of Hartland, Wisconsin enacted Ordinance No. 850-18, which prohibited the establishment of “Temporаry or Permanent Residence” by a “Designated Offender,” that is, a sex offender, within the Village “until such time as the saturation level for Designated Offenders in the Village of Hartland reaches a factor of 1.1 or lower ….” A sex offender is a “person who has been convicted of … a sexually violent offense and/or a crime against children.” The “saturation level” is
At the time the Ordinance went into effect, Hartland’s saturation level was 6.75.
According to the Ordinance’s “findings and intent” section, the Village recently learned that there were thirty-five sex offenders living within the Village, an allegedly high number compared to neighboring areas. The ordinance was a “regulatory measure aimed at protecting the health and safety of the children of the Village of Hartland from the risk that a convicted sex offender may re-offend in locations close to a Designated Offender’s residence ….” The U.S. Supreme Court has “recognized that the risk of recidivism posed by sex offenders is high and when convicted sex offenders re-enter society, they are much more likely than any other type of оffender to be rearrested for a new rape or sexual assault.” That sex offenders “suffer a high rate of recidivism,” the Village believed, “has a basis in fact,” and they collectively “are a serious threat to public safety,” pose specific dangers to children, and “are more likely to use physical violence.” The “potential of psychological trauma to citizens of the Village is real but difficult to calculate.”
The Village represents that the moratorium allows local police more time and flexibility in developing its dedicated community policing program to give officers a chance to
B.
Koch is a registered sex offender. Before the Ordinance was passed, he was convicted of one count of engaging in repeated acts of sexual assault on a child and two counts of second-degree sexual assault of a child. He served seven years in prison before being released. His convictions qualify him as a “Designated Offender” under the Ordinance.
Since his conviction, Koch has worked to get his life on a positive track. He found employment and now wishes to live in Hartland to be closer to work and family, as the Village provides more suitable rental properties than the town where he currently resides. A property owner was even willing to rent to Koch, but the Village’s Ordinance prevents any landlord from doing so. Instead, Koch must continue to live with his parents and commute a longer distance to work.
C.
Koch sued the Village, alleging that the Ordinance deprived him of a constitutional right under the Ex Post Facto Clause by criminally punishing his conduct before its enactment. See
Koch filed a timely appeal. We review a grant of summary judgment de novo, drawing all reasonable inferences “in the light most favorable to the nonmoving party on each motion.” Birch|Rea Partners, Inc. v. Regent Bank, 27 F.4th 1245, 1249 (7th Cir. 2022) (quoting Lalowski v. City of Des Plaines, 789 F.3d 784, 787 (7th Cir. 2015)).
II.
The Constitution provides that “[n]o State shall … pass any … ex post facto Law,”
A.
We have held that a regulatory scheme applying “only to conduct occurring after the law’s enactment” is merely prospective and thus cannot violate the Ex Post Facto Clause. Vasquez, 895 F.3d at 520. Koch concedes that under current precedent the Ordinance is not retroactive because it targets only future conduct, that is, taking up residency in the Village. Nonetheless, he urges us to overturn this rule, which conflicts with the history and values of the Ex Post Facto Clause, Supreme Court precedent, and the consensus among other circuits and state courts. We take this opportunity to overrule it.1
1.
The Ex Post Facto Clause safeguards the legal principle that there can be no punishment without law, nulla poena sine lege. This maxim has a long history. The Digest of Justinian, a sixth-century codification of Roman law, declared, “The penalty for a past wrong is never increased ex post facto.” Robert G. Natelson, Statutory Retroactivity: The Founders’ View, 39 Idaho L. Rev. 489, 500 (2003). William Blackstone, in his influential Commentaries on the Laws of England, recounted with horror how the emperor Caligula posted laws that could not be seen by the public and then prosecuted his subjects. 1 William Blackstone, Commentaries *46; see generally Evan C. Zoldan, The Civil Ex Post Facto Clause, 2015 Wis. L. Rev. 727,
Despite this venerable history, Parliament still enacted acts that resembled ex post facto laws. David F. Forte & Matthew Spalding, The Heritage Guide to the Constitution 203. Against this backdrop, the Framers included the Ex Post Facto Clauses in the Constitution. See
2.
The Supreme Court has recognized the values embodied by the Ex Post Facto Clauses and adhered to a broader understanding of retroactivity than used by our court.2 The clearest formulation of the retroactivity inquiry—and the one we
More recently, Vartelas v. Holder, 566 U.S. 257 (2012), reaffirmed this understanding of retroactivity. In 1996, Congress overhauled the immigration system by enacting the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). Id. at 260. The law abolished the old two types of proceedings, deportation hearings and exclusion hearings, and replaced them with a simple “removal proceeding.” Id. at 261–62. Under the old system, “lawful permanent residents who had committed a crime of moral turpitude could … return from brief trips abroad without applying for admission to thе United States.” Id. at 263. The question before the court was whether IIRIRA applied to lawful permanent residents who committed crimes of moral turpitude before the Act’s effective date. Id. at 265. The dissenting justices did not believe
The Court has also implicitly acknowledged, in Smith v. Doe, 538 U.S. 84 (2003), that sex-offender laws applying to people with convictions before the effective date are retroactive. Smith involved Alaska’s Sex Offender Registration Act, which had two components: a registration requirement and a notification system. Id. at 89–90. A sex offender had to register in the state promptly and verify the information on a regular basis. Id. Alaska chose to publish much of this information on the internet. Id. at 91. Two sex offendеrs challenged the law, and the Ninth Circuit agreed that the system violated the Ex Post Facto Clause. The Supreme Court reversed because the law did not punish pre-Act offenders, as the scheme had neither the purpose nor the effect of punishing past conduct. Id. at 92–95. But the Court never considered the possibility that the law was only prospective, noting even the components of the system were “retroactive.” Id. at 90.
Other circuits employ a similar retroactivity analysis and recognize that sex-offender laws applying to conduct before their enactment date are retroactive. See, e.g., Doe v. Pataki, 120 F.3d 1263, 1265, 1273 (2d Cir. 1997) (acknowledging implicitly that the law was retroactive and assessing then “whether a retrоactively imposed burden constitutes ‘punishment’ within the meaning of the Ex Post Facto Clause”); E.B. v. Verniero, 119 F.3d 1077, 1092 (3d Cir. 1997) (examining a sex offender law and asking whether the state “has inflicted ‘punishment’”); United States v. Young, 585 F.3d 199, 203 (5th Cir. 2009) (per curiam) (“Indeed, for a penal law to be considered ex post facto, it ‘must apply to events occurring before its enactment.’ Although SORNA does relate to old conduct that
States, when interpreting a federal or state ex post facto clause, have reached the same conclusion. See, e.g., Gonzalez v. State, 980 N.E.2d 312, 316 (Ind. 2013) (“This provision prohibits, in relevant part, the passage of any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’” (quoting Weaver, 450 U.S. at 28); Commonwealth v. Baker, 295 S.W.3d 437, 442 (Ky. 2009) (“As a threshold question, for a law to be considered ex post facto, ‘it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.’”); State v. Letalien, 985 A.2d 4, 13–15 (Me. 2009) (summarizing retroactivity law and moving tо whether the law punishes sex offenders, as the state made that principal argument); State v. Walls, 558 S.E.2d 524, 525–26 (S.C. 2002) (“First, the law must be retroactive so as to apply to events occurring before its enactment. … The Act meets the first prong of determining whether it falls within ex post facto prohibitions. The
3.
Our caselaw has departed from this history and judicial consensus. Our departure began in United States v. Leach. 639 F.3d 769. There, Donald Leach, a convicted sex offender, challenged his conviction under the federal Sex Offender Registration and Notification Act (“SORNA”), which requires all sex offenders to register in the jurisdiction where they work, reside, and attend school, as contravening the Ex Post Facto Clause. Id. at 770–71. The registration requirements of SORNA, we concluded, however, were not retrospective because the law “merely create[d] new, prospective legal obligations based on the person’s prior history.” Id. at 773. Thus, Leach’s argument failed for that reason alone. Id. We also remarked that Smith v. Doe proved indistinguishable, as both involved similar registration requirements that did not violate the Constitution. Id. In reaching this outcome, we joined every other circuit to have considered SORNA’s residency requirements. Id.
Vasquez v. Foxx, 895 F.3d 515, then adopted the retroactivity analysis employed in Leach. At issue in the case was Illinois’s residency restriction for child sex offenders, which prohibited them from residing within 500 feet of facilities with
As made clear, the Leach-Vasquez rule for analyzing retroactivity can no longer stand. This is not the first time we have expressed doubt over our approach. In Hope v. Commissioner of Indiana Department of Correction, the en banc majority noted “[t]here is tension in the caselaw regarding the requirement of the retroactivity prong.” 9 F.4th at 530. But because the plaintiffs did not ask us to overrule our prior decisions and the Indiana SORA was not punitive, we declined to revisit our decisions at the time. Id. The concurrence, however, observed that “[o]ur case law on the retroactivity prong need[ed] a course correction.” Id. at 535 (Scudder, J., concurring). “What Leach and Vasquez failed to account for [was] that the registration obligations did not apply at the time the sex offenders
We overturn our previous rule governing the retroactivity inquiry of the Ex Post Facto Clause, announced in Leach and followed in Vasquez, that a law which “targets only [] conduct undertaken … after its enactment” is not retroactive.6 Leach, 639 F.3d at 773; see also Vasquez, 895 F.3d at 520 (holding that a law applying “only to conduct occurring after the law’s enactment” is not retroactive). Instead, “[t]he critical question is whether the law changes the legal consequences of acts completed before its effective date.”7 Weaver, 450 U.S. at 31; see also Vartelas, 566 U.S. at 273 (“The essential inquiry … is ‘whether the new provision attaches new legal consequences to events
* * *
“There is no question that the obligations imposed by” many sex-offender laws “apply retroactively.” Hope, 9 F.4th at 535 (Scudder, J., concurring); see also Does 1-5, 834 F.3d at 698; Shaw, 823 F.3d 560. The Village’s Ordinance is one example. It attaches new legal consequences to pre-Act conduct. See Weaver, 450 U.S. at 31. Specifically, those convicted of qualifying sex offenses now face additional burdens that did not exist at the time of their offenses; they cannot establish residence in the Village of Hartland.8
B.
The retroactivity prong, though, is only half the analysis: to violate the Ex Post Facto Clause, a law must also be punitive. Hope, 9 F.4th at 530. In determining whether а law is penal, courts employ the two-part “intent-effects test.” Id. The first inquiry is “whether the legislature intended to enact a punitive, rather than a civil, law.” Id. If not, the second inquiry is whether the law is “so punitive” in “effect as to negate [the
Relying on Hope and Vasquez, the Village asks us to conduct this fact-intensive inquiry ourselves. But the Ordinance drastically differs from the targeted laws at issue in our prior cases. See Hope, 9 F.4th at 520 (a sex-оffender residency ban within 1,000 feet of a school, daycare, youth program, or public park); Vasquez, 895 F.3d at 522 (a 500-foot buffer zone around daycares). Given that the district court never considered the punitive prong, we remand to allow it to do so in the first instance. See N.J. by Jacob v. Sonnabend, 37 F.4th 412, 426–27 (7th Cir. 2022).
III.
For these reasons, we reverse and remand the judgment of the district court.
KARSTEN KOCH, Plaintiff-Appellant, v. VILLAGE OF HARTLAND, Defendant-Appellee.
No. 22-1007
United States Court of Appeals For the Seventh Circuit
ARGUED MAY 27, 2022 — DECIDED AUGUST 8, 2022
The majority opines, “[t]he clearest formulation of the retroactivity inquiry,” supra at 8–9, comes from Weaver: “The critical question is whether the law changes the legal consequences of acts сompleted before its effective date.” Weaver, 450 U.S. at 28. But that broad rule is not the most recent law on retroactivity. In Vartelas, the Supreme Court limited Weaver, holding that certain laws otherwise satisfying Weaver’s boundaries are not retroactive when they target postenactment dangers. Vartelas, 566 U.S. at 271 n.7 (holding that the IIRIRA statute at issue operated retroactively because it did not target postenactment dangers).
The first question in determining whether a statute’s application is prospective or retrospective is: What is the reference point—the “moment in time to which the statute’s effective date is either subsequent or antecedent”? Vartelas, 566 U.S. at 277 (Scalia, J., dissenting). In his Vartelas dissent, Justice Scalia considered this moment to be when the regulated party does what the statute forbids or fails to do what it requires. Id. If that moment is postenactment, then the statute is not retroactive to that conduct. If preenactment, then retroactive.
I am not, contrary to the majority’s charge, suggesting we apply Justice Scalia’s dissent. Rather, I cite to it because the Vartelas majority clarified its rule in response to Justice Scalia, rejecting his proposеd reference point. Instead, the majority held that courts must choose between two possible reference points—preenactment misconduct or postenactment dangers—by identifying which is the target of the legislature’s regulation. Vartelas, 566 U.S. at 269–70. No longer is the
The majority worries Vartelas’s rule might “render the Ex Post Facto Clause’s protections a nullity” because legislatures would begin tailoring their laws to address postenactment dangers. Supra at 16 n.7. But what’s wrong with legislatures’ being more explicit about whether their laws are retrospective or prospective? Courts should encourage, not discourage, such legislative clarity. The majority does not explain why incentivizing legislative precision in tailoring is so problematic. And to the extent that Vartelas’s framework is a problem, it is a problem for the Court that wrote Vartelas, not this court.
Still, the rule announced in Vartelas makes clear that Hartland’s Ordinance is retroactive. Vartelas, like this case, involved a law that restricted future movement based on past misconduct: The IIRIRA statute (
Considering Vartelas makes clear the retroactivity of the Ordinance, there is no reason to overrule Leach and Vasquez. Both were correctly decided under Vartelas’s postenactment dangers approach. The law at issue in Leach expressly addressed a future danger—unregistered sex offenders moving to a new jurisdiction. The registration requirements dirеctly addressed the danger at issue—public ignorance of potentially dangerous sex offenders in the community. Cf. Elk Shoulder, 738 F.3d at 958 (finding nonretroactive the registration and notification provisions of the pre-SORNA Wetterling Act under Vartelas because “they addressed the danger that the public would not be aware of potentially dangerous sex offenders living, working, or attending school in its area.”). And the Illinois statute in Vasquez did the same thing in requiring that sex offenders could not live within 500 feet of daycares. The new day care requirement explicitly addressed a postenactment peril recognized by the state—children in daycares in physical proximity to sex offenders. Neither Leach nor Vasquez featured a law that imposed new obligations becausе of previous convictions. On the contrary, the laws in both cases plainly expressed that the reasons for the new obligations were to address present activity. Both cases survive
But there’s no doubt that Hartland’s ordinance addresses no postenactment danger. It is not “impossible to square” this with the original Vasquez holding. See supra at 15 n.5. Vartelas instructs us to look at the purpose of the law. The Illinois statute in Vasquez was tailored to address the specific problem of sex offenders’ close physical proximity to daycares. The Hartland ordinance never even attempts to speсify what the residence ban targets besides sex offender status.
Applying Vartelas, I agree the ordinance is retroactive and the case should return to the district court for a determination on punitiveness.