Case Information
*1 Before P OSNER E ASTERBROOK S YKES Circuit Judges . P OSNER Circuit Judge
. Before us cross appeals case which two convicted challenge aspects 13 1233 of Wisconsin’s statutory scheme of sex registration, notification, and monitoring violating prohibition in Article I, section federal Constitution against states’ enacting ex post facto laws, is, retroactive criminal pun ishments. The scheme, which we’ll call monitoring act, was enacted after plaintiffs committed and were convict ed offenses made subject it, though before they’d finished serving sentences. district judge disposed on summary
judgment. F. Supp. 2d (E.D. He ruled registration fee act im poses on convicted such these fine, which form punishment cannot constitu tionally imposed on persons who committed crimes before provision was enacted. Id. at 909. He upheld other provisions act. Id. 913. appeals his ruling fee, his ruling upholding act’s other provisions had challenged.
Plaintiff Mueller, who now lives in Connecticut, had been convicted in in two counts sexual con tact girl when he was years old. He had been sentenced four years in prison (but part his sentence had been suspended) followed six years pro bation, he completed without incident in 1999. He married has four adult children. Plaintiff Deangelis, who lives Florida, had been twice convicted sexual assaults, one he committed (when he years old) 1993. He was sentenced five years prison first time one year second time. Recently widowed, he two young children, one 13 1225, 13 1233 3 adult child, and several stepchildren (children his de ceased wife). Supreme Court upheld similar offender moni
toring act (Alaska’s) Smith v. Doe U.S. 84 (2003); see also American Civil Liberties Union Nevada v. Masto (9th Cir. 2012); Doe Bredesen F.3d (6th 2007); A.A. ex rel. M.M. New Jersey (3d 2003); cf. United States Leach Wisconsin’s act contains impositions and restrictions found Alaska’s act. one. Others include prohibition against working or volunteering jobs require “to work or interact primarily and directly children under years age,” Stat. § 948.13(2)(a) (this provision applies only child offenders, however, therefore Deangelis); filming or photographing chil dren without written, informed consent children’s parents guardians, § 948.14(2)(a); changing one’s name, using name name by one designated records Depart ment Corrections, 301.47(2). Other lifetime impositions prohibitions challenged by having give notice change address before moving new address; having report all email addresses, websites, internet screen names; having respond all cor respondence Corrections mail within days. §§ 301.45(2)(a)(6m), (2)(g), (4m).
Not longer live Wisconsin; they say they don’t intend ever return state, how ever briefly. And express concern were flight Chicago diverted reasons weather Milwaukee, might fall into clutches Wis consin Corrections failure comply with some provision act. What then have gain from decision invalidating act? If nothing, district court no jurisdiction over their suit.
No issue standing raised in district court, or in briefs in this court parties filed initially; asked parties advise us “whether plaintiffs standing sue federal court Article III Constitution, given neither plaintiff domiciled, lives, works, attends school, physically present Wisconsin. The answer may depend on (a) whether Wisconsin requires non residents who lack current connection with state register with system; (b) whether Wisconsin’s criminal provisions governing registered sex offenders, including Stat. § 301.47 (prohibiting registered offenders from changing their names), 948.14 (restricting registered photographing children), sub stantive restrictions apply matter state law conduct occurs wholly outside non residents current connection state; (c) whether, present law, either duty register substantive limitations registrants’ conduct unconstitutionally extrater ritorial; (d) whether—however foregoing questions answered—the state’s threat prosecute itself creates standing.” advises us “where, here, registrant
commits covered offense then moves out state, requires continued registration” until death if, like case, crimes “trigger[ed] lifetime registration.” require 13 1225, 13 1233 5 ment can, state argues, be applied to persons with no current connection to Wisconsin without violating prin ‐ ciple that cannot general regulate conduct that oc curs outside its borders, see, e.g., State v. Cardwell A.2d (Conn. 1998); People v. Blume N.W.2d 843, 845– (Mich. 1993); Simpson State S.E. (Ga. 1893), because Wisconsin residents retain interest keeping track past wherever offenders now live. For example, it may help restore peace mind to victim offense learn where is living—or duce precautionary measures if victim discovers offender, although longer Wisconsin resident, lives just across Wisconsin border, Michigan, Illinois, Iowa, Minnesota.
Whether right wrong arguing it has constitutional authority enforce its registration quirement against nonresidents immediate issue, however. For there standing, enough intends enforce requirement against plaintiffs grounds thinking constitutional authori ty do so so preposterous can simply ignore state’s threat prosecute them if they keep registering annually till death shall part them from registry offenders. received frequent letters Cor rections reminding must comply requirements life failure felony. So there some danger they’ll prosecuted fail comply, threat harm sufficient confer standing sue, Babbitt United Farm Workers National Un ion U.S. (1979); South Michigan Ave. As sociates, Ltd. Devine while ‐ ‐ decision pay a rational re ‐ sponse threat therefore an actual harm caused by challenged law.
The state acknowledges limitations on power pun ‐ ish violations of provisions of monitoring act, such working with photographing minors. provides a person subject “prosecution pun ‐ ishment” for conduct occurs wholly outside state if, far bears this case, “the person does act with intent cause in state a consequence set forth a section defining a crime.” Stat. 939.03(1)(c). This provision applies straightforwardly ‐ quirement, because nonresident’s failing comply a criminal consequence Wisconsin—namely failure reg ‐ ister with state’s of Corrections. state acknowledges “the plaintiffs could not prosecuted wholly out state acts working with minors, of intentionally capturing representation minor. The de fendants aware prosecution having been tempted these statutes wholly out state con duct” (citations omitted). further acknowledges “no prosecution would occur going forward, con duct wholly out state.” And al lege intention engaging conduct “a consequence set forth section defining crime.” combination disclaimers by dis claimers negates standing challenge these two provisions act. Compare Mink Suthers 1254–55 (10th 2007), St. Paul Area Chamber Commerce Gaertner New Hampshire Right Life Political Ac tion Committee Gardner (1st 13 1225, 13 1233 7
True, the disclaimers the state made us found the letters that the Corrections sends plaintiffs. It’s also true that the Supreme Court Wis ‐ consin interprets Stat. 939.03, statute that defines territorial reach Wisconsin criminal law, broadly. Only one element crime (for example, intent kill, homi cide case) need occur Wisconsin for state assert ju risdiction punish crime. State v. Anderson , 695 N.W.2d 731, (Wis. 2005); see also Poole v. State , N.W.2d 328, 330–31 (Wis. 1973); State v. Inglin N.W.2d 666, (Wis. App. 1999). But another way interpret letters plaintiffs reminders what plaintiffs may face if— if—they return Wisconsin. One can imagine an argument they interacted with or photographed mi nor outside Wisconsin who happened Wisconsin res ident could accused having committed an element crime (under Wisconsin law) Wisconsin. But argue that. They argue might try ex tradite for interacting with photographing minors who actual potential contact state—and unreasonable fear. Younger v. Harris U.S. (1971); J.N.S., Inc. Indiana 1983); Seegars Gonzales (D.C. 2005); Mangual Rotger Sabat (1st insists can enforce against prohibition against offender’s changing his name, irrespective intent him cause bidden consequence Wisconsin, same reasons argues can enforce require ment itself—indeed, prohibition name changing is, like fee, part requirement. not have standing to challenge prohibition, because, while opposing it, neither of expresses intention of changing his name.
They have standing complain (as do) about bother having comply act’s quirements continual updating information supply registry. But these requirements are deemed punitive (and hence trigger constitutional prohibition ex post facto laws), Smith Doe supra U.S. 97–102, unlike invali dated Doe Prosecutor, Marion County which forbade access social networking websites. what about $100 annual fee? calls it a fee, a fine. Fee fine two
quite different animals. A fee is compensation for a service provided to, alternatively compensation for a cost im posed by, person charged fee. By virtue offenses imposed on State Wiscon sin cost obtaining recording information about whereabouts other circumstances. fee imposed virtue cost, though like most fees it doubtless bears an approximate relation cost it meant offset. A fine, contrast, a punishment for unlawful act; a substitute deterrent for prison time and, like punishments, signal social disapproval un lawful behavior.
Labels control. A fine fine even called fee, one basis reclassifying fee fine bore relation cost which ostensibly intended compensate. That common basis fee reclassified a tax. Empress Casino Joliet Corp. v. Bal ‐ moral Racing Club, Inc. (7th 2011) (en banc); Schneider Transport, Inc. Cattanach it seems acknowledged that if the $100 annual fee bona fide fee, it fine rather tax. burden of proving that it fine on the plaintiffs, since they have presented no evidence that it ‐
tended fine, compare Smith Doe supra U.S. at 92; Taylor Rhode Island (1st cannot get first base without evidence gross ‐ ly disproportionate the annual cost keeping track of registrant—and have presented no evi ‐ dence either. They haven’t even tried. They could have sought discovery cost structure the ‐ fender system, didn’t do so. In our order ‐ questing supplemental briefing we invited search such evidence public domain, specifying infor mation “shows either incremental average cost additional registrant.” All came up two reports by De partment Corrections legislature explain ing Department’s decision fix fee initially $50 (2006), raised (the maximum fee authorized, Stat. 301.45(10)). reports list fees states, discuss costs, and—the part fastened on plain tiffs—indicate fee would reduce amount mon ey would allocate Corrections finance activities. Obviously if De partment income, need higher appro priation; see how elementary point bears reasonableness fee. Moreover, implication, the fee income is being used defer expenses the Department Corrections, is not that it is a fine that it is tax.
Wisconsin’s $100 fee the same that neighboring state, Illinois, albeit higher the fees charged by Idaho ($80) and Massachusetts ($75). See ILCS 150/3(c)(6); Ida ho Code 8307(2); Mass. Gen. Laws ch. § 178Q. This sample states—all we’ve been given—is too small allow an inference so high it must fine. Department Corrections lists the tasks involved main taining registry, and list formidable. It includes gathering information, notifying registrants quired updates and verifications, processing responses notifications, allocating information across potential users different rights access (for example, enforcers versus general public), maintaining updating data makes available public. We know how close average cost per registrant $100, thus whether falls far short support an inference it’s really fine.
There an illuminating contrast with fee issue argued before us same day case was ar gued. At issue Cerajeski Zoeller was Indiana’s practice taking custody unclaimed property, trying find owner, if finds him return ing property him—but unclaimed property unclaimed interest bearing bank account, keeping inter est accrued. This held taking property, service, because relation between accrued interest services provided respect un claimed property completely arbitrary (the did attempt defend the taking the interest income as a tax). We are given no reason think the same is true the fee at issue case.
The district judge thought a fine because it intended “to offset cost providing service intended solely for benefit general public. The fact assessments are used offset costs fenders does eliminate penal aspect assess ment. … To be sure, State non punitive purpose for wanting collect money for such purpose, but single out only individuals who prior convictions for sexual assaults sole source such funds can be seen punitive.” F. Supp. 2d at 909. We disagree. The fee tended compensate for expense maintain ing offender registry. The are responsible for expense, there nothing “punitive” about making them pay for it, more “punitive” charge for passport. If there were no passports, there would no passport office, no expenses operating such office. provides service abiding public maintaining registry, there no service hence expense were there no offenders. As responsible expense, there nothing pu nitive about requiring defray it. See In DNA Ex Post Facto Issues F.3d (4th 2009); Taylor Rhode Island supra 782–84; cf. Slade Hampton Roads Regional Jail 2005); Till man Lebanon County Correctional Facility 420– (3d last question put parties our order ask ing supplemental briefs “whether may permitted litigate anonymously, given that their con victions are matters public record that both are currently registered in Wisconsin, makes their names information freely available. It would help court parties stated how public obtains access information about registered Wisconsin’s sys tem.” defendants their supplemental brief state, they
have stated throughout litigation, they have ob jection plaintiffs’ litigating pseudonymously. But nei ther, they add, they objection plaintiffs’ being required litigate their actual names. And they point out answer second part our question names sex offender registrants available from variety public sources, including Cor rections’ website or hour automated phone service, or by calling sex offender registry office during business hours, by accessing website “Family Watchdog,” private service (and one) enables viewer search sex offender registrants address, zip code, name.
In support their request permission litigate pseudonymously they “and families experienced shunning harassment after were publicly listed registered sex offenders.” tension submission argue existing sources information about sex offender status “are simply comparable notoriety arise being named plaintiff lawsuit challenging fender laws.” No doubt offender’s filing suit chal lenging attracts fresh attention him, *13 Nos. ‐ 1225, ‐
even if increment in notoriety substantial think he should be permitted litigate anonymously. Secre cy in judicial proceedings, including concealment of parties’ names, disfavored. See, e.g., Doe Elmbrook School District 710, (7th Cir. affirmed, 840, (7th 2012) (en banc); see generally GEA Group AG Flex N Gate Corp ., ‐ WL 97289, at *8 (7th Jan. 2014). Secrecy makes difficult public (including bar) understand grounds and motivations of decision, why case was brought (and fought), what exactly stake in it. Sometimes these concerns are overridden, in (most pertinent this case) cases in plaintiff victim of sexual abuse, espe cially child victim; disclosure could induce unwanted attentions of other sexual abusers gawking or ridicule kids. Yet even in such cases we’ve required some evi dence of incremental effect victim of disclosure of his her name judicial opinion. Doe Smith
The are not victims of sexual abuse, perpetrators it. The social value of claim pri vacy therefore weaker victims. And bene fits pseudonymous litigation bound smaller perpetrators. names victims sexual offenses appear offender registry, while even name plaintiff does appear caption lawsuit, information provided judicial decision—age marital family status plaintiff, his cur rent residence, dates nature his crimes sentenc es—will often sufficient enable curious obtain plaintiff’s name web. plaintiffs’ complaint about publicity status received states now live, and how publici ty had disrupted their personal and working lives, leaves us wonder what additional harm revelation being named case could do.
What true prevailed thus knocked out registration provisions, access formation about them would shrink because online search registry would longer find names, benefits litigating pseudonymously would greater. these private rather social benefits; anyway lost.
To summarize, judgment district court versed insofar concerned; modified place dismissal plaintiffs’ challenges act imple mentation grounds standing, make dismis sal without prejudice. Otherwise judgment affirmed. Finally, reformed caption replace “John Does” plaintiffs’ names.
[*] In original caption this case, were referred “John Doe Connecticut” “John Doe Florida.” We replaced those pseudonyms plaintiffs’ real names because, explained end opinion, think this proper allow litigants litigate pseudonyms.