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Hoffman v. Village of Pleasant Prairie

United States District Court, E.D. Wisconsin

April 17, 2017

FRANKLYN HOFFMAN, KENNETH DERKSON, JOHNNY WOOTEN, ERIC SANDERS, MICHAEL O'CONNELL, STEPHEN HART, WILLIAM JOHNSON, JAMES NORGAARD, and ALTON ANTRIM, Plaintiffs,
v.
VILLAGE OF PLEASANT PRAIRIE, Defendant.

          ORDER

          J.P. STADTMUELLER U.S. DISTRICT JUDGE

         1. INTRODUCTION

         On February 8, 2017, Plaintiffs Franklyn Hoffman (“Hoffman”), Kenneth Derkson (“Derkson”), [1] Johnny Wooten (“Wooten”), Eric Sanders (“Sanders”), Michael O'Connell (“O'Connell”), Stephen Hart (“Hart”), William Johnson (“Johnson”), James Norgaard (“Norgaard”), and Alton Antrim (“Antrim”) filed a motion for summary judgment. (Docket #41). Defendant Village of Pleasant Prairie (the “Village”) opposed the motion on March 2, 2017. Plaintiffs replied in support of their motion to March 15, 2017. For the reasons stated below, Plaintiffs' motion must be granted in part.[2]

         2. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56 provides the mechanism for seeking summary judgment. Rule 56 states that the “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A “genuine” dispute of material fact is created when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes all facts and reasonable inferences in a light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016).

         3. RELEVANT FACTS

         The material facts are almost entirely undisputed.[3] On April 18, 2016, the Village passed an ordinance regulating residency for child sex offenders within its borders (the “Ordinance”). Plaintiffs initiated the instant suit on June 9, 2016, challenging its constitutionality. The Ordinance prohibited child sex offenders, called “designated offenders” (hereinafter “Designated Offenders”), from residing in the Village within 3, 000 feet of a “prohibited location.” “Prohibited locations” included “[a]ny school, licensed day-care center, park, trail, playground, place of worship, athletic field used by Minors, or any other placed designated by the Village as a place where Minors are known to congregate.” (Docket #43-1 at 2). The Ordinance also prevented Designated Offenders from moving into the Village unless they were already domiciled in the Village at the time of their most recent offense. Designated Offenders were excluded from any potential violation of the Ordinance if they resided continuously in a home prior to and after its effective date. This provision was limited by a ban on renewing rental agreements with Designated Offenders which would extend for more than six months beyond the Ordinance's effective date.

         The Ordinance further restricted where Designated Offenders could live with respect to each other; offenders were banned from residing within 500 feet of each other. The Ordinance applied to all Designated Offenders without any inquiry into the danger any individual offender posed to the community. It did, however, contain a grandfather clause. The grandfather clause allowed Designated Offenders to stay in their residence if a “prohibited location” was established near them after they took residence. It also permitted them to live with their close family members, provided those family members had resided in the otherwise prohibited area for at least two years.

         The Court recognizes that this explanation is somewhat confusing when stated in prose. To better understand the effect of the Ordinance on various Designated Offenders, the Court has prepared the following chart:

Nature of Offender

Restriction Imposed

1) Domiciled in the Village at time of most recent offense

2) Lived in the Village when Ordinance was passed

None, as long as the offender's home complied with the distancerelated restrictions

1) Not domiciled in the Village at time of most recent offense 2) Not domiciled in Village when Ordinance was passed

Permanently banned from the Village

1) Not domiciled in the Village at time of most recent offense

2) Lived in the Village when Ordinance was passed

3) Rented property that did not comply with distance restrictions

Must leave the Village by October 18, 2016, and may never return

1) Not domiciled in the Village at time of most recent offense 2) Lived in the Village when Ordinance was passed 3) Owned home or lived with family

May remain in that property, but may not move to another home in the Village. If the offender leaves their home for more than thirty days, they may never return.

See (Docket #45 at 4-5).

         In passing the Ordinance, the Village prepared a map showing its projected effect on Designated Offender residency. The map revealed that more than ninety percent of the Village would be off-limits to Designated Offenders under the Ordinance. The remaining ten percent was largely non-residential. Moreover, the interaction between the 3, 000 foot prohibited zone and the rule against Designated Offenders living near one another further limited the possible dwelling places. Most of the Village's low-income housing, which is all that most of these plaintiffs could afford, was excluded.

         When enacting the Ordinance, the Village did not obtain or consider any studies or data regarding the safety risk of allowing Designated Offenders to live near the various “prohibited locations” identified above, or near one another. In fact, the Village's administrator, Michael Pollocoff (“Pollocoff”), testified that turning child sex offenders into outcasts can create “more deleterious impacts.” (Docket #45 at 6). The Village also had no evidence that Designated Offenders domiciled outside the Village at the time of their last offense posed a greater safety risk than those who were. Pollocoff stated that the Ordinance's purpose and goal was to reduce the number of child sex offenders living in the Village.

         All Plaintiffs but Norgaard, [4] O'Connell, [5] and Hoffman[6] were not domiciled in the Village at the time of their offense, and rented their abodes, and so fell into the third category from the chart above.[7] Each was told that, in light of the Ordinance's passage, they had to leave the Village by October 18, 2016. Plaintiffs were variously notified of their need to vacate by a letter from the Village's Chief of Police, by conversations with their probation officers, or by conversations with other Designated Offenders. Each Plaintiff has suffered stress as a result of the threat posed by the Ordinance, the difficulties in attempting to secure new housing, and fear of the consequences of homelessness.

         The Ordinance was repealed, and a new one created in its place, on September 6, 2016 (the “Amended Ordinance”). The Amended Ordinance lowered the 3, 000 foot prohibited zone to 1, 500 feet. This would still cut Designated Offenders out of over sixty percent of the Village's land area and seventy-five percent of its residences. The restriction on Designated Offenders living near each other was removed entirely, as was the limit on renewing leases for Designated Offenders living in a prohibited zone. Finally, the Amended Ordinance stated that it did not apply to a Designated Offender whose latest conviction was ten or more years prior to them taking residence in the Village.

         4. ANALYSIS

         Plaintiffs' Second Amended Complaint advances three causes of action. Count One alleges that the Ordinance violates the Ex Post Facto Clause in Article I of the Constitution, because “it makes more burdensome the punishment imposed for offenses committed prior to enactment of the Ordinance and it applies retroactively[.]” (Docket #30 at 22). Plaintiffs seek an injunction against its enforcement and money damages on Count One. Id. at 23. Count Two states that the Ordinance also violates the Equal Protection Clause of the Fourteenth Amendment because it differentiates between Designated Offenders who were or were not domiciled in the Village at the time of their most recent offense, without a rational basis for doing so. Id. at 23-24. Plaintiffs also seek injunctive and monetary relief on Count Two. Id. at 24. Finally, Count Three seeks a declaratory judgment in favor of O'Connell on the issue of whether he had to leave the Village. Id. at 24-25; see supra note 5. Plaintiffs' instant motion requests judgment on Counts One and Two as to liability only.[8] The Court addresses each claim in turn.

         4.1 Ex Post Facto

         Initially, the Village contends that Plaintiffs' ex post facto claim is mooted by its repeal of the Ordinance. This Court may only exercise its jurisdiction over live controversies. Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 669 (2016). This requirement applies not only at the start of the litigation, but throughout its entire pendency. Id. An action becomes moot, and must therefore be dismissed, when “an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit.” Id. (quotation omitted). A court must take care not to paint over a lawsuit's claims with a broad brush, however. A case only becomes moot “when it is impossible for a court to grant any effectual relief ...


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