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Kaufman v. Walker

Court of Appeals of Wisconsin, District I

May 30, 2018

James J. Kaufman, Plaintiff-Appellant,
Scott Walker, Brad Schimel and Denise Symdon, Defendants-Respondents.

          APPEAL from an order of the circuit court for Dane County No. 2015CV001128: JULIE GENOVESE, Judge. Affirmed.

          Before Brennan, P.J., Brash and Dugan, JJ.

          DUGAN, J.

         ¶1 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, [1] 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.

         ¶2 We provide limited factual and statutory background and we will refer to additional relevant facts in our discussion.


         ¶3 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.[2]

         ¶4 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.

         ¶5 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 money.

         ¶6 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.

         ¶7 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.

         ¶8 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.

         ¶9 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 at RCI.

         ¶10 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.

         ¶11 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 that:

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.

         The nine-year sentence was subsequently reduced to eight years.

         ¶12 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 January 2016.

         ¶13 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.


         ¶14 W S . § 301.48 (2015-16)[3] 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.

         ¶15 In addressing Kaufman's constitutional challenges to the sex offender GPS tracking requirement, we apply the following standard of review.

         I. The Standard of Review

         ¶16 "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.

         II. The Sex Offender GPS Tracking Requirement is Not Punishment and, Therefore, It Does Not Violate the Ex Post Facto Clause

         ¶17 In asserting that the GPS tracking requirement violates the Ex Post Facto Clause and its counterpart in the Wisconsin Constitution, [4] 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 punishment.[5]

         ¶18 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 proof'" ...

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