James J. Kaufman, Plaintiff-Appellant,
Scott Walker, Brad Schimel and Denise Symdon, Defendants-Respondents.
from an order of the circuit court for Dane County No.
2015CV001128: JULIE GENOVESE, Judge. Affirmed.
Brennan, P.J., Brash and Dugan, JJ.
James J. Kaufman, pro se, appeals an order
dismissing his action challenging the constitutionality of
the statute requiring global positioning system (GPS)
tracking for sex offenders. In essence, Kaufman contends that
(1) the State's GPS tracking violates the Ex Post Facto
Clause because it retroactively imposes lifetime GPS
monitoring upon sex offenders, (2) the GPS tracking violates
his Fourth Amendment rights,  and (3) he was entitled to a
particularized due process determination before the State
could impose the GPS tracking upon him. We disagree and,
therefore, affirm the trial court's order.
We provide limited factual and statutory background and we
will refer to additional relevant facts in our discussion.
Kaufman states he committed the following sexual offenses:
"[H]e masturbated an 11-year-old boy for 30-seconds; he
performed oral sex on a 17-year-old boy while videotaping
that act; and he possessed one CD-ROM of what 'appeared
to be' (according to police reports) nude teenage
males." Although the record contains some conflicting
dates, the complaints indicate the offenses were committed in
mid-1997 and early 1998.
In November 1997, Kaufman pled guilty to the first of three
child sex crimes, felony first-degree sexual assault of a
child. Kaufman had fondled an eleven-year-old boy. Two
additional charges for soliciting a child for prostitution
were dismissed but read in to the record. The criminal
complaint alleged that Kaufman paid $3.85 to a boy as an
enticement to allow Kaufman to fondle him. It also alleged
that Kaufman had offered money to other neighborhood
children, but that they had refused his sexual advances.
Before his sentence was imposed, Kaufman was charged with
committing two more child sex crimes. Kaufman once again paid
a child to allow Kaufman to perform a sex act. This time,
Kaufman also videotaped the encounter. Kaufman pled guilty to
both felony sexual exploitation of a child and felony
possession of child pornography. Witness statements indicate
that Kaufman paid around $300 to $500 to videotape himself
performing oral sex on his cousin's boyfriend while the
cousin watched. Both children agreed to Kaufman's
advances because they had run away from home and needed
The trial court sentenced Kaufman for these sex crimes in
June 1998. For the child sexual exploitation and possession
of child pornography charges, Kaufman received nine years in
prison. The court also imposed a withheld sentence for the
first-degree sexual assault of a child charge, with twenty
years of probation that began on his release from prison.
Kaufman was released on probation in June 2007. In December
2007, the Department of Corrections (DOC) found that Kaufman
was violating his probation by creating a MySpace social
media account, viewing pornography, and accessing the
internet, which he was not permitted to use except for
employment purposes. Pictures of underage males were also
located during a search of his residence.
Rather than revoke Kaufman's probation, DOC allowed
Kaufman to participate in an inpatient sex offender treatment
program at Racine Correctional Institution (RCI). After
completing the program, Kaufman was released on July 2, 2008.
Within days of his release, Kaufman violated the conditions
of his release by possessing pornographic pictures,
possessing a computer modem, and accessing the internet
without prior agent approval. Kaufman also had a collection
of sexually explicit stories about adults having sexual
intercourse with underage males. DOC was alerted to the
violations after RCI officials intercepted several large
envelopes with pornography, including the sexually explicit
stories that Kaufman had mailed to another child sex offender
DOC recommended revocation of Kaufman's probation. His
probation was revoked by an administrative law judge, who
concluded that Kaufman "was and remains a serious threat
to children." The revocation was upheld on appeal.
On March 30, 2009, Kaufman returned to the trial court and
was sentenced to nine years of prison on the first-degree
sexual assault charge. At sentencing, the trial court stated
that it found it especially troubling that Kaufman had
violated the conditions of his probation so soon after
completing his sex offender treatment program, commenting
the most concerning thing about it to me, sir, is …
you did it within weeks of being released from the most
significant and beneficial treatment you'd had in the
past ten years, where you learned the most and understood the
most about your criminal activity and should have had the
best opportunity to prevent any further victims.
nine-year sentence was subsequently reduced to eight years.
Kaufman was granted parole in May 2013. His multiple sex
crime convictions triggered the statutory requirement for GPS
location tracking. Since Kaufman's May 2013 release, he
has been required to wear a GPS tracking anklet that allows
DOC to track his whereabouts. Kaufman's parole ended in
In April 2015, Kaufman filed a pro se action for
declaratory judgment and injunctive relief. In December 2016,
the trial court issued an order denying Kaufman's motion
for declaratory judgment. This appeal followed.
W S . § 301.48 (2015-16) creates a scheme of
DOC-administered GPS tracking for specific types of released
sex offenders. It requires DOC to monitor offenders released
from prison who have committed sex crimes against children
and those who have committed multiple sex crimes. Secs.
301.48(2)(a)l.-8. Offenders who are subject to GPS tracking
must wear a device that tracks their physical location at all
times. Sec. 301.48(3). The GPS tracking requirement typically
lasts for life, but offenders may petition a circuit court to
terminate tracking after twenty years. Secs. 301.48(2)(a),
301.48(6). DOC may also petition to end lifetime tracking of
permanently physically incapacitated offenders. Sec.
301.48(7). GPS tracking also is terminated if the offender
moves out of Wisconsin, but it resumes if the offender
returns. Sec. 301.48(7m). The statute does not empower DOC to
enter offenders' homes, take offenders into custody, or
request that law enforcement enter their homes. See
generally sec. 301.48. Moreover, DOC officials normally
review an offender's location data at the end of each
day, not in real time.
In addressing Kaufman's constitutional challenges to the
sex offender GPS tracking requirement, we apply the following
standard of review.
The Standard of Review
"The constitutionality of a statute is a question of
law, which this court determines independently of …
the [trial] court … but still benefitting from [its]
analys[is]." See State v. Smith, 2010 WI 16,
¶8, 323 Wis.2d 377, 780 N.W.2d 90. Like all statutes,
Wis.Stat. § 301.48 is presumed constitutional. See
Blake v. Jossart, 2016 WI 57, ¶27, 370 Wis.2d l,
884 N.W.2d 484. "[I]f any doubt exists about the
statute's constitutionality, the court must resolve that
doubt in favor of upholding the statute." Id.
Merely establishing doubt about a statute's
constitutionality does not suffice, and "'it is not
enough to establish that a statute probably is
unconstitutional.'" Id. (citation omitted).
Instead, Kaufman has the heavy burden to show that using GPS
to track repeat sex offenders like himself is
unconstitutional beyond a reasonable doubt. See League of
Women Voters of Wis. Educ. Network, Inc. v. Walker, 2014
WI 97, ¶17, 357 Wis.2d 360, 851 N.W.2d 302.
The Sex Offender GPS Tracking Requirement is Not
Punishment and, Therefore, It Does Not Violate the Ex Post
In asserting that the GPS tracking requirement violates the
Ex Post Facto Clause and its counterpart in the Wisconsin
Constitution,  Kaufman asserts that although the
legislature's stated intent was regulatory rather than
punitive, the actual intent is punitive. While the State
agrees that Wis.Stat. § 301.48 has a retroactive effect
on Kaufman, it asserts that the trial court's
determination that the statute does not violate the Ex Post
Facto Clause should be affirmed, based on this court's
holding in State v. Muldrow, 2017 WI.App. 47,
¶23, 377 Wis.2d. 223, 900 N.W.2d 859');">900 N.W.2d 859, that the GPS
tracking requirement does not constitute
A statute is an ex post facto law only if it imposes
punishment. Smith v. Doe, 538 U.S. 84, 92 (2003). In
making that determination, the court must first determine
whether the legislature intended to impose punishment.
Id. If the answer is "yes, " that ends the
inquiry. Id. If, however, the legislature intended
to enact a regulatory scheme that is civil and non-punitive,
the court must further examine whether the statutory scheme
is "'so punitive either in purpose or effect as to
negate [the State's] intention' to deem it
'civil.'" Id. (citation and one set of
quotation marks omitted). "'[O]nly the clearest