March 22, 2010 – The Wisconsin Supreme Court, in State v. Smith (2008AP1011, March 19, 2010), rejected a constitutional challenge to the Wisconsin sex offender registration statute and affirmed the Court of Appeals decision.
In 2001, Smith pled guilty to a charge of false imprisonment when he and others forced a minor to ride around with them in a vehicle in order to collect a drug debt from the minor’s friend. There was no allegation that the false imprisonment entailed anything sexual.
However, under Wisconsin’s sex offender registry statute, Wis. Stat. § 301.45, Smith is required to register as a sex offender because he was convicted of false imprisonment of a minor. The court noted that 41 other states, including Wisconsin, require individuals convicted of false imprisonment or kidnapping of a minor to register as sex offenders. See Smith ¶ 4, Note 4. Because Smith failed to register, he was charged in 2005 with violating Wis. Stat. § 301.45(2)(g) and sentenced to one year of confinement followed by one year of extended supervision.
Smith appealed his conviction and challenged the constitutionality of the sex offender registry statute as it applied to him, claiming it violated his due process and equal protection rights under the United States and Wisconsin constitutions because the crime he committed was not sexual. This was the issue before the supreme court.
The court’s analysis
A statute enjoys a presumption of constitutionality, and to overcome that presumption, a party must prove that the statute is unconstitutional beyond a reasonable doubt. See Id. ¶ 8. Smith acknowledged that the statute serves a legitimate state interest and, therefore, he did not raise a facial constitutional challenge. Instead, he argued that the statute was unconstitutional as applied to him because requiring him to register is irrational, arbitrary, and cannot be rationally related to any legitimate governmental interest. See Id. ¶ 10.
The parties agreed that in this case, a fundamental right is not implicated and that a suspect class is not disadvantaged, therefore the challenged statute is not subject to strict scrutiny review but rather a deferential, rational basis review. The statute “must be sustained unless it is ‘patently arbitrary’ and bears no rational relationship to a legitimate government interest.” See Id. ¶ 12.
To have a rational basis, substantive due process requires only that the “means chosen by the legislature bears a reasonable and rational relationship to a legitimate governmental interest.” Under equal protection, the legislature must have reasonable and practical grounds for the classifications that it draws, and when determining if there is a rational basis, we must presume that the legislative action is valid. See Id. ¶¶ 14-15. The court determined that the analyses under both substantive due process and equal protection are essentially the same.
Registration is in the government interest
Wisconsin’s sex offender registration statute broadly defines “sex offense” to include certain offenses without regard to whether they are of a sexual nature, including the offense of false imprisonment if the victim was a minor. “The legislature was well aware of its ability to carve out exceptions to the registration requirement,” but in the case of false imprisonment, “the legislature retained the reporting requirement for Smith, and others like Smith, who committed the crime of false imprisonment of a minor, regardless of whether his crime was of a sexual nature.” See Id. ¶ 23.
Smith’s argument essentially boiled down to the fact that the title of the registry and the statute’s language unfairly characterize him as a “sex offender” because the crime he committed was not sexual. The court, however, determined that “the name of the registry and the label that is associated with Smith’s crime do not change the fact that the statute includes his offense as one for which registration is required.” See Id. ¶ 24.
The court found that requiring Smith to register is rationally related to the government interest in protecting the public and assisting law enforcement because: (1) false imprisonment has been linked to the commission of sexual assault and violent crimes against children; (2) and offender’s sexual motive or intent may be difficult to prove or determine within the context of false imprisonment; and (3) false imprisonment places the minor in a vulnerable position because the offender, rather than the minor, has control over the minor’s body and freedom of movement. See Id. ¶ 13.
The court further determined that in requiring child abductors to register, the legislature may well have rationally concluded that child abductions are often precursors to sexual offenses. See Id. ¶ 30. In addition, the statute does not require the State to prove what the abductor must have been thinking or whether the abductor committed a sexual act. See Id. ¶ 32. “The legislature conditioned registration for that crime on the victim being a minor, rather than on the State being able to prove sexual motivation.” See Id. ¶ 34.
The court, therefore, found that Smith was not able to prove beyond a reasonable doubt that requiring him to register as a sex offender is not rationally related to a legitimate government interest, and the court tallied numerous conceivable, rational reasons why the legislature could have chose to include registration for Smith. The court affirmed the court of appeals decision and concluded that Wis. Stat. § 301.45 is constitutional as applied to Smith.
The dissent
In the dissent written by Justice Bradley, the minority found two errors in the majority’s analysis. First, that the majority failed to carefully define the purpose of the statute and, second, that the majority mischaracterized Smith’s challenge by blurring the distinction between facial and as-applied challenges.
As to the first error, the dissent discussed the substantial need for accuracy, specificity, and analysis when articulating the nature of the government’s legitimate purpose, and found that the majority’s determination that the purpose was “to protect the public and assist law enforcement” was far too broad. See Id. ¶ 46-47. As a result, “the court waters down its constitutional analysis.” See Id. ¶ 52.
As to the second, the dissent argues that the majority did not undertake an analysis appropriate to an as-applied for constitutional challenge.
Because Smith posed an as-applied challenge, the dissent argues that the majority must tie the legitimate government purpose underlying the sex offender registry to the facts of Smith’s case. Therefore, the question presented is whether the registration requirement is constitutional even though it is undisputed that Smith’s crime was not sexually motivated and involved no sexual act or misconduct. See Id. ¶ 61.
“The majority ducks the actual question presented by flipping it on its head,” the dissent continued. “It addresses hypothetical facts.” As a result, the dissent concludes, the majority failed to provide meaningful review, “depriving citizens of the touchstone of due process protection of the individual against arbitrary action of the government.”
