IN THE INTEREST OF C. G., A PERSON UNDER THE AGE OF 18: STATE OF WISCONSIN, PETITIONER-RESPONDENT, v. C. G., RESPONDENT-APPELLANT.
Case No.: 2018AP2205
COURT OF APPEALS OF WISCONSIN
January 20, 2021
2021 WI App 11
Stark, P.J., Hruz and Seidl, JJ.
PUBLISHED OPINION; †Petition for Review filed; †RESPONDENT-APPELLANT.
Submitted on Briefs: November 9, 2020
Oral Argument:
JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Concurred:
Dissented:
Appellant ATTORNEYS: On behalf of the respondent-appellant, the cause was submitted on the briefs of Kelsey Loshaw and Cary Bloodworth, assistant state public defenders, Madison.
Respondent ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the briefs of Scott E. Rosenow, assistant attorney general, and Joshua L. Kaul, attorney general.
IN THE INTEREST OF C. G., A PERSON UNDER THE AGE OF 18: STATE OF WISCONSIN, PETITIONER-RESPONDENT, v. C. G., RESPONDENT-APPELLANT.
Appeal No. 2018AP2205
COURT OF APPEALS OF WISCONSIN
January 20, 2021
2021 WI App 11
Cir. Ct. No. 2016JV38; Sheila T. Reiff, Clerk of Court of Appeals
APPEAL from orders of the circuit court for Shawano County: WILLIAM F. KUSSEL, JR., Judge. Affirmed.
¶1 SEIDL, J. C.G. (“Ella“) appeals an order denying her postdispositional motion to stay her juvenile sex offender registration under
¶2 Ella contends the circuit court erroneously exercised its discretion by denying the stay. In addition, Ella contends that, as applied to her, requiring her to register as a sex offender violates her First Amendment rights because the statute‘s prohibition against legally changing her name restricts her right to self-expression as being a female. She further contends that because the prohibition is a content based restriction, we must apply strict scrutiny. By applying strict scrutiny, Ella asserts that her right to self-expression outweighs any government interest in limiting her use of another legal name. Finally, Ella contends that requiring her to register as a sex offender constitutes cruel and unusual punishment, thereby violating her Eighth Amendment rights.
BACKGROUND
¶4 On May 10, 2016, the Shawano Police Department received a complaint that a fifteen-year-old male with disabilities, Alan, had been held down by Ella and Mandy2 while at Mandy‘s house, so that Ella could perform oral sex on him. At the time of her appeal, Ella was nineteen years old, but she was fifteen at the time of the incident. Ella sat on Alan‘s legs while Mandy held down his arms. Alan was five feet, ten inches tall and weighed 110 pounds. A face sheet from the DOC stated that Ella was six feet, five inches tall and weighed 345
¶5 After a police investigation, the State filed a delinquency petition against Ella, alleging one count of sexual assault of a child under sixteen years of age, as a party to a crime, contrary to
¶6 Ella‘s attorney moved to stay the sex offender registry requirement under
¶7 Ella subsequently filed a motion to change placement claiming that Lincoln Hills was an unsafe placement for her and that she exhibited good behavior and progress in treatment. Ella stated that another youth had punched her in the head. Lincoln Hills’ staff suggested that Ella was partly to blame for that incident because she told other youths that they were cute, which “could get other youth kind of worked up a little bit.” Additionally, a room search revealed that Ella had written a number of letters inappropriately referencing teachers. Ella nonetheless successfully completed Lincoln Hills’ juvenile cognitive intervention program. The circuit court denied Ella‘s motion for a change of placement, finding that her placement at Lincoln Hills remained appropriate.
¶8 Ella was also the victim of a second unprovoked assault by another youth at Lincoln Hills causing a significant head wound requiring hospital treatment. Following this assault, the DOC transferred Ella from Lincoln Hills to the Mendota Juvenile Treatment Center (MJTC) in order to better serve Ella‘s mental health needs and for her safety. Ella was sent to MJTC, in part, because she was transitioning as a transgender youth from a male to a female identity, and she was a target for aggression from other youths at Lincoln Hills.
¶10 Ella‘s dispositional order terminated, and she filed a postdispositional motion seeking to stay her sex offender registration, and to have the circuit court declare Wisconsin‘s juvenile sex offender registry provisions unconstitutional. Ella also filed a supplemental postdispositional motion, attaching a psychosexual evaluation completed by Dr. Nick Yackovich, Jr., a psychologist who specializes in sex offender treatment. Yackovich conducted a risk assessment, opining thereafter that Ella‘s predicate offense likely was the result of “immature decision-making and poor boundary setting, but does not evidence criminogenic factors or a deviant sexual interest.” He also opined that the public would not be protected by Ella‘s registration as a sex offender and that there was a possibility that registration would harm Ella. The circuit court issued a written decision denying Ella‘s motions. This appeal follows.
DISCUSSION
I. Stay of Sex Offender Registration
¶11 Ella first argues that the circuit court erroneously exercised its discretion by refusing to stay the disposition requiring her to register as a sex offender. See State v. Cesar G., 2004 WI 61, ¶40, 272 Wis. 2d 22, 682 N.W.2d 1 (holding that “the sex offender registration requirement established in
¶12 A reviewing court may not substitute its discretion for that of the circuit court. State v. Rhodes, 2011 WI 73, ¶26, 336 Wis. 2d 64, 799 N.W.2d 850. When the circuit court sets forth inadequate reasons for its decision, however, we will independently review the record to determine whether the court properly exercised its discretion and whether the facts provide support for its decision. Miller v. Hanover Ins. Co., 2010 WI 75, ¶30, 326 Wis. 2d 640, 785 N.W.2d 493.
¶13 In considering whether to stay the sex offender registration requirement for a delinquent juvenile, a circuit court should consider the factors enumerated in
¶14 Ella first contends the circuit court erred as a matter of law when it concluded that she had to prove that she posed “no risk,” rather than a low risk, to reoffend. She argues the “no risk” standard is not the law and is impossible to prove.
¶15 Ella also contends the circuit court erred in finding that she would not face any added harm from the sex offender registration, arguing that this view constitutes a fundamental misunderstanding about the LGBTQ4 population. She asserts that requiring her to use her male name when she identifies as female “outs her.”5
¶16 Ella further asserts that the circuit court placed too much emphasis on the seriousness of the offense, and it failed to weigh the other Cesar G. factors as applied to her individually. In addition, Ella contends the court relied on incorrect facts by stating that she had been inconsistent in reporting information to her treatment providers. Specifically, Ella contends the court noted that she reported to Dr. Reich that she had never been involved in “this kind” of behavior before, but Ella failed to note that she later told an individual at Lincoln Hills that
¶17 With regard to Ella‘s risk to reoffend, while Ella argues the circuit court imposed an erroneous and impossible “no risk” standard instead of weighing “the probability that the juvenile will reoffend, not the mere possibility of re-offense,” we cannot discern that the court actually employed such a legal standard. The court found that:
A risk remains to reoffend; reduced, but nonetheless a risk. That level of risk and the benefits to the protection of the community by complying with the [sex offender registry] need[] to be balanced against the harm felt by the individual as a consequence of registering.
....
The risk to reoffend exists in this case, albeit ... low. However, if such reoffen[s]e happens, the harm felt to the victims is very high.
It is clear from the above findings that the court did not use a “no risk” standard—i.e., the court did not determine Ella must prove she poses no risk of reoffending. Instead, the court considered that her risk, albeit low, was significant enough to warrant the need for further community protection through the sex offender registry. This was a proper exercise of the court‘s discretion.
¶18 Ella further argues the circuit court erroneously exercised its discretion by failing to consider the following evidence regarding her low risk of reoffense: (1) Ella successfully completed Lincoln Hills’ two-part juvenile cognitive intervention program; (2) she was bullied because of her sexuality and
¶19 The circuit court, however, did consider this evidence. For example, the court considered Dr. Caldwell‘s findings and Ella‘s completion of sex offender treatment as supporting her claim that she was a low risk to reoffend. The court nonetheless found that Ella did act inappropriately while at Lincoln Hills when she “attempted to kiss another student without that student‘s permission,” and that this act evidenced her impulsiveness and created a concern that Ella would act out sexually in the future. The court agreed that there was a reduced risk of reoffense, but the court observed that the harm felt by the victims is very high if reoffense happens. The court properly noted that the “goal of juvenile rehabilitation needs to be balanced with the purposes of personal accountability and of public protection.”
¶20 Ella additionally argues the circuit court erroneously “ignored” Dr. Reich‘s testimony and Dr. Caldwell‘s evaluation, both of which placed Ella in a relatively low-risk category for reoffense. However, as indicated by the court‘s findings set forth above, it is evident the court did not ignore but, in fact adopted, that testimony. In addition, to the extent it could be discerned that the court‘s risk conclusion was any different from that of the experts, a court acting as fact finder is not required to accept an expert‘s ultimate conclusion. See Sullivan v. Bautz, 2006 WI App 238, ¶18, 297 Wis. 2d 430, 724 N.W.2d 908.
¶22 Ella‘s sexual assault was also nonconsensual and arguably premeditated. Prior to the sexual assault occurring, Alan expressed to Ella and Mandy that he was not interested in this type of behavior. Facebook messages reveal that Ella asked Alan if he had ever received “head” before. Alan repeatedly told Ella that he did not want “head” from Ella. Additionally, Alan told Mandy that he did not want to get “head” from a “guy.” Although Ella notes that she, Alan, and Mandy were friends, the messages support the circuit court‘s findings that “[Alan] didn‘t want to have this type of relationship.” Alan was also a vulnerable victim. He is blind in his left eye, a high school freshman functioning at a sixth-grade level, and suffers from attention deficit disorder and autism spectrum disorder. As stated above, Alan was much smaller than Ella. All of these facts strongly support the court‘s finding regarding the seriousness of the offense.
¶24 The circuit court also properly exercised its discretion in denying the stay by balancing the public‘s interest in having Ella register as a sex offender against the harm to Ella posed by such registration. The court found that although Ella may be stigmatized by having to register as a sex offender, such stigma is undoubtedly experienced by anyone who has to register as a sex offender. And while Ella argues she will be harmed by remaining on the sex offender registry, she has presented no evidence of actual harm to date in support of that claim. The court considered that the purposes underlying the registration requirement are to protect the public and to assist law enforcement. The record supports the court‘s determination that the public‘s interest in law enforcement‘s effective use of the registry outweighs any harm to Ella caused by the registration requirement.
II. First Amendment Challenge
¶26 Ella argues that the name-change ban in
¶27 In order to determine whether the name-change ban in
¶28 Ella argues that the name-change ban in the sex offender registry statute regulates her right to express female identity and is therefore an unconstitutional burden on her free speech. Ella contends that having a name consistent with her gender identity gives her “dignity and autonomy that otherwise does not exist with her birth name.” She further contends that her ability to informally identify with a female-sounding name—as long as she notifies the registry that she uses such a name—is insufficient to protect her right to formally identify in that manner with a name other than her current legal name. This inability, according to Ella, prohibits her from truly identifying as a woman, and it also forces her to “out herself as a male anytime she is required to present her legal name.”
¶30 We agree with the State‘s argument. Ella‘s wish to express herself with her desired name does not mean that the ban on legally changing her name implicates the First Amendment. This court rejected a similar argument in Williams v. Racine County Circuit Court, 197 Wis. 2d 841, 541 N.W.2d 514 (Ct. App. 1995). There, the circuit court denied a prisoner‘s petition to change his name pursuant to
¶31 Additionally, a federal district court has recently held that a transgender plaintiff failed to meet her burden of showing that Wisconsin‘s
¶32 Ella has therefore failed to meet her burden to prove that her First Amendment rights are implicated by the sex offender registry statute, and she has failed to rebut the presumption of constitutionality. Ella has the right to use whatever name she chooses, provided she includes it in the sex offender registry. See
¶33 Nonetheless, if we engage in a First Amendment analysis, we conclude that the name-change ban in
¶34 Content based laws—i.e., those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015) (citations omitted). Government regulation of speech is content based if a law applies to particular speech because of the topic discussed, or the idea or message expressed. Id.
¶35 Ella‘s argument that the name-change ban is content based misses the mark. The name-change ban does not target speech based on its communicative content. Specifically, it does not apply to particular speech because of the topic discussed, or the idea or message being conveyed. See id. On its face, the name-change ban only requires an individual to register using his or her existing legal name and any other name the individual wishes to use, and it prohibits an individual from changing his or her legal name. See
¶36 As a content neutral statute, the name-change ban would at most be subject to intermediate scrutiny. See Baron, 318 Wis. 2d 60, ¶14. A content neutral restriction on speech is lawful under intermediate scrutiny if: (1) it furthers an important or substantial government interest; (2) the governmental interest is unrelated to the suppression of free expression; and (3) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 662 (1994). The regulation does not need to be the least speech-restrictive means of advancing the government‘s interest in order to satisfy this standard. Id. A regulation is sufficiently narrow if the governmental interest “would be achieved less effectively absent the regulation.” Id. (citation omitted).
¶37 Wisconsin‘s statutory name-change ban for sex offender registrants easily passes intermediate scrutiny. Under the first prong of the Turner test, the name-change ban furthers an important or substantial government interest—specifically, to “protect the public and assist law enforcement.” Bollig, 232 Wis. 2d 561, ¶21. Allowing changes to a registrant‘s legal name would frustrate the ability of the public and law enforcement to quickly identify sex offenders and their locations.
¶39 As to the third prong of the Turner test, the name-change ban is sufficiently tailored to achieve the State‘s important interest in efficiently tracking registered sex offenders. As noted above, the statute specifically enables Ella to express herself by using her desired name; she simply may not change her legal name. The name-change ban is sufficiently narrow in scope because it does “not ‘burden substantially more speech than is necessary to further the government‘s legitimate interests.‘” Turner, 512 U.S. at 662 (citation omitted).
¶40 In summary, the name-change ban in
III. Eighth Amendment Challenge
¶41 Ella also raises an as-applied challenge to the sex offender registry under the Eighth Amendment8 to the United States Constitution, which prohibits
¶42 Ella‘s argument regarding the Eighth Amendment fails because our supreme court has held that Wisconsin‘s sex offender registration requirement does not constitute punishment at all. See Bollig, 232 Wis. 2d 561, ¶27. In Bollig, the court held that “Wisconsin‘s registration statute does not evince the intent to punish sex offenders, but rather it reflects the intent to protect the public and assist law enforcement.” Id., ¶21. Bollig is binding and requires that we conclude the sex offender registry is not cruel or unusual punishment. We therefore reject Ella‘s claim in that regard.
¶43 While Ella concedes that, under Bollig, the purpose of the sex offender registry is civil and nonpunitive, she nevertheless argues that its effect is punitive as applied to her, given her transgender identity. To determine if a statute is punitive, we apply the “‘intent-effects’ test.” State v. Williams, 2018 WI 59, ¶21, 381 Wis. 2d 661, 912 N.W.2d 373. If there is a finding that the intent was to impose punishment, the law is considered punitive and the inquiry stops there. City of S. Milwaukee v. Kester, 2013 WI App 50, ¶22, 347 Wis. 2d 334, 830 N.W.2d 710. If the intent was to impose a civil and nonpunitive regulatory scheme, the court must next determine whether the effects of the sanctions imposed by the law are so punitive as to render them criminal. Id.
¶44 Our supreme court found in Bollig that the intent of the sex offender registry statute is not to impose punishment but, rather, to create a civil regulatory scheme to protect the public and assist law enforcement. Moreover, the effects of
¶45 In Young, an inmate brought an as-applied challenge to Washington State‘s Community Protection Act of 1990, asserting the Act was punitive as applied to him in violation of the Double Jeopardy and Ex Post Facto Clauses of the United States Constitution. Id. at 253-54. The Washington Supreme Court, however, had already concluded that the Act was civil in nature, rather than punitive. Id. at 253. The United States Supreme Court held that Young could not “obtain release through an ‘as-applied’ challenge to the Washington Act on double jeopardy and ex post facto grounds.” Id. at 263. The Court reasoned “that [allowing] an ‘as-applied’ analysis would prove unworkable. Such an analysis would never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme‘s validity under the Double Jeopardy and Ex Post Facto Clauses.” Id.. The Court further reasoned that “[p]ermitting [Young‘s] as-applied challenge would invite an end run around the Washington Supreme Court‘s decision that the Act is civil in circumstances where a direct attack on that decision is not before this Court.” Id. at 263-64.
¶46 Similarly, in the present case, we cannot now allow Ella to relitigate the issue as to whether the effects of the sex offender registry statute are so punitive as to be a criminal penalty in her case. To do so would contravene Bollig, as we would have to reconsider the same factors our supreme court did in that case and arrive at a different conclusion. We would be reweighing whether the protection of the public and assistance to law enforcement are not as important as
¶47 In summary, Bollig prevents Ella‘s as-applied challenge. The Wisconsin sex offender registration requirement is not punitive. Ella may not circumvent Bollig by bringing an as-applied challenge. See Young, 531 U.S. at 263-65.
CONCLUSION
¶48 We reject Ella‘s argument that the circuit court erroneously exercised its discretion when it denied Ella‘s postdispositional motion to stay the requirement that she register as a sex offender. We further conclude that the statutory name-change ban does not implicate the First Amendment right to free speech, and even if it does, it is content neutral and does not trigger strict scrutiny. The ban survives intermediate scrutiny. Finally, precedent from our supreme court prevents Ella‘s Eighth Amendment as-applied challenge. Accordingly, we affirm.
By the Court.—Orders affirmed.