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Date: 01-17-2018

Case Style:

Anthony Johnson v. Lisa Madigan, Hiram Grau, Tracie H. Newton, and Bruce V. Rauner

Northern District of Illinois Courthouse - Chicago, Illinois

Case Number: 16-3189

Judge: Miller

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Darryl Goldberg and Rebecca Clough

Defendant's Attorney: Sunil Shashikant Bhave and Sarah Hughes Newman

Description: A felony conviction for stealing
$12 worth of meat branded Anthony Johnson a “sexual predator”
under Illinois law and subjected him to burdens and responsibilities
he didn’t have before that conviction. He filed
suit contending that the United States Constitution’s ex post
facto clause makes at least some of those burdens and responsibilities
unconstitutional. The district court dismissed Mr.
Johnson’s complaint for failure to state a claim on which relief
could be granted. Mr. Johnson appeals. We affirm, after first
reviewing the appellee’s challenge to Mr. Johnson’s standing
to pursue this case after moving to Wisconsin.
Mr. Johnson was convicted of rape, deviate sexual assault
and aggravated kidnaping in 1983, when he was 19 years old.
Illinois law required him to register as a sex offender for ten
years because of that conviction, and he did so. In 2011, Illinois
amended its Sex Offender Registration Act to define as a
“sexual predator” a person who had been convicted of any
felony offense after July 1, 2011, and had been required to register
as a sex offender under a conviction that required registration
for more than ten years. 730 ILCS 150/2(E)(7); 730 ILCS
150/3(c)(2.1). By 2011, Illinois offenders who committed rape
or deviate sexual assault were required to register for life. So
when Mr. Johnson was convicted of felony theft in 2013, he
became a “sexual predator” for purposes of Illinois’ Sex Offender
Registration Act. His term of required registration for
the 1983 rape conviction had long expired, but sexual predators
must register for the rest of their lives.
A sexual predator in Illinois must register in person as often
as four times a year (weekly if he has no permanent address)
and whenever he changes his residence, employment,
telephone number (including cell phones), or school. 730 ILCS
No. 16-3189 3
150/6. The offender must tell authorities his email address,
any internet communications identity including instant messaging,
any URL registered to him, and any new blogs or internet
sites he maintains and to which he has uploaded content
or posted messages. Id. An offender who expects to be
away from home for more than three days must notify authorities
(and provide his itinerary) in the jurisdictions of both his
residence and his destination. 730 ILCS 150/3(a). When Mr.
Johnson received the label, sexual predators couldn’t be present
in or loiter near a park, 720 ILCS 5/11-9.4-1(a-c), but that
statute has been found unconstitutional. People v. Jackson, __
N.E.3d __, 2017 IL App (3d) 150154, ¶ 29 (Ill. App. Ct. Sep. 12,
2017).
Mr. Johnson bore none of those obligations until his felony
theft conviction. He sued the Illinois state officials who enforce
these obligations on the propositions that as applied to
him, the burdens violated his right to substantive due process,
his right against double jeopardy, and his right to be free from
ex post facto laws. The district court dismissed his second
amended complaint for failure to state a claim on which relief
could be granted. On appeal, Mr. Johnson presents only his ex
post facto claim. Since the case presents only questions of law,
our analysis must start from the beginning. Glascoe v. Bezy, 421
F.3d 543, 546 (7th Cir. 2005).
After the district court’s ruling but before the appellate argument,
Mr. Johnson moved from Illinois to Wisconsin. The
appellee state officials contend that because Wisconsin enforces
its own registration requirements on sex offenders, Mr.
Johnson left his standing to complain about his Illinois obligations
behind him in Illinois. We invited supplemental briefing.
We have no power to decide the case if the appellees are
4 No. 16-3189
right about that, see Gubala v. Time Warner Cable, Inc., 846 F.3d
909, 911 (7th Cir. 2017) (no case or controversy when plaintiff
has no standing to sue), so we start with the standing issue.
As the person seeking relief, Mr. Johnson must show that
he has standing by demonstrating an injury-in-fact that is
fairly traceable to the defendants’ action and capable of being
redressed by our decision. Libertarian Party of Illinois v. Scholz,
872 F.3d 518, 522 (7th Cir. 2017). Mr. Johnson explains that because
Illinois required him to register throughout his life as a
sexual predator, Wisconsin law makes him do so, too. Wis.
Stat. § 301.45(1g)(f). His 1983 rape conviction would not, by
itself, require him to register in Wisconsin. See Wis. Stat. §
301.45(1g)(g). He must register in Wisconsin because Illinois
designated him a sexual predator. Were we to order the Illinois
officials to expunge that designation, Mr. Johnson would
no longer be required to register in Wisconsin as a sex offender.
The appellees focus on arguments that Mr. Johnson made
when he lived in Illinois. In Smith v. Doe, 538 U.S. 84 (2003),
the Supreme Court considered an Alaska statute that required
registration based on sex offense convictions that took place
before the statute was enacted. The Court evaluated the obligations
imposed by the statute and after considering a series
of factors, concluded that those obligations—or, from the offender’s
viewpoint, burdens—were part of a civil, nonpunitive
regulatory scheme rather than so punitive as to trigger
the ex post facto clause. Id. at 90–91. When he lived in Illinois,
Mr. Johnson argued before the district court that the Illinois
statute imposed burdens that went so far beyond the Alaska
requirements as to be punitive rather than regulatory—and so
No. 16-3189 5
was prohibited by the ex post facto clause because his new status
relied on a decades-old conviction.
But as one living in Wisconsin, with no intent to return to
Illinois shown in this record, Mr. Johnson isn’t subject to those
Illinois—specific obligations that might have made his circumstances
different from Mr. Smith’s situation in Alaska. He
no longer has to register in Illinois. Compare Mueller v. Raemisch,
740 F.3d 1128, 1132 (7th Cir. 2014) (Wisconsin required
continuing registration in Wisconsin even after offender
moved out of state). Illinois doesn’t bar Mr. Johnson from
Wisconsin’s parks, bikeways or trails, require Mr. Johnson to
register in person in Wisconsin, or limit where in Wisconsin
Mr. Johnson can work, live, or loiter. Compare Does #1-5 v.
Snyder, 834 F.3d 696, 703 (6th Cir. 2016).
We addressed similar standing issues in Mueller v. Raemisch,
740 F.3d 1128 (7th Cir. 2014). The plaintiffs had been convicted
of child sex crimes in Wisconsin, and required to register
there, then moved out of state. The state claimed that its
statute still required the plaintiffs to register in, and to pay an
annual fee to, Wisconsin. We held that the claimed reach of
the Wisconsin statute gave the plaintiffs standing to challenge
the statutory fee and requirement of keeping their registrations
up to date. But they had no standing to challenge statutory
prohibitions against being with or photographing children,
because Wisconsin couldn’t prohibit those activities beyond
its own borders. Id. at 1133.
The appellees make no claim that the Illinois statute has
extra-territorial impact on Mr. Johnson. They make no claim
that they can require Mr. Johnson to register in person several
times a year or upon changing his residence, employment, telephone
number, or school; or that he must disclose to Illinois
6 No. 16-3189
officials his email address, internet communications identities,
his internet sites to which he uploaded content or posted
messages, or his travel itineraries. They don’t claim that they
can keep Mr. Johnson off or away from Wisconsin’s bikeways,
trails, or public parks and their environs. The appellees conclude
that if Mr. Johnson can’t do such things in Wisconsin,
it’s only because Wisconsin forbids it.
The appellees’ argument is sound as far as it goes, but it
misses Mr. Johnson’s main point. Mr. Johnson would have no
obligation to register at all in Wisconsin had Illinois not
branded him a sexual predator. While his arguments focus on
the effect of a sexual predator classification under Illinois law,
Mr. Johnson’s suit ultimately seeks relief from the classification
as well as the burdens. To obtain that relief, he must persuade
us that the restrictions that flow from designation as a
sexual predator make the statute penal rather than regulatory,
triggering the constitutional prohibition on ex post facto laws.
See Smith v. Doe, 538 U.S. 94 (2003); Mueller v. Raemisch, 740
F.3d 1128 (7th Cir. 2014). As a Wisconsin resident with no apparent
interest in returning to Illinois, Mr. Johnson is free
from most of the restrictions imposed by Illinois law, but the
sexual predator classification imposed in Illinois continues to
affect him even in Wisconsin. Mr. Johnson therefore has
standing to contest his classification as a sexual predator under
Illinois law.
So we reach the merits of Mr. Johnson’s constitutional
claim. To succeed, Mr. Johnson must show both that the Illinois
act is retroactive and that the Illinois act is disadvantageous
to those affected, Gilbert v. Peters, 55 F.3d 237, 238 (7th
Cir. 1995), meaning that it increases the punishment for a preNo.
16-3189 7
vious crime—and applies to events occurring before its adoption.
Collins v. Youngblood, 497 U.S. 37, 42 (1990); Weaver v. Graham,
450 U.S. 24, 29-30 (1981). Even if we assume the Act was
punitive rather than regulatory—a showing Mr. Johnson
must make to prevail on his ex post facto claim, and which the
appellees dispute—Mr. Johnson can’t clear the first hurdle.
The Illinois act doesn’t increase the penalty for his 1983 rape
conviction.
A statute is retroactive for purposes of the ex post facto
clause if it redefines or changes the penalty for a crime committed
before the law went into effect. United States v. Hemmings,
258 F.3d 587, 594 (7th Cir. 2001). The 2012 version of
Illinois’ Sex Offender Registration Act didn’t redefine or
change the penalty for crimes committed in 1983. It didn’t apply
to Mr. Johnson when it took effect. Mr. Johnson only fell
within its ambit when he committed, and was convicted of, a
felony in 2013. No one has improved on the explanation Justice
Jackson gave of a similar situation eighty years ago: “The
sentence as a fourth offender or habitual criminal is not to be
viewed as either a new jeopardy or additional penalty for the
earlier crimes. It is a stiffened penalty for the latest crime,
which is considered to be an aggravated offense because it is
a repetitive one.” Gryger v. Burke, 334 U.S. 728, 732 (1948); see
also United States v. Jordan, 870 F.2d 1310, 1315 (7th Cir. 1989)
(“The enhancement provision…increases the punishment for
this crime. It does not affect the punishment previously meted
out to Jordan for the three robberies he committed prior to the
effective date of the Act.”).
The 2012 Illinois Sex Offender Registration Act raised the
stakes for people like Mr. Johnson, who had been convicted
8 No. 16-3189
of a sex offense in the past: were such a person to commit another
felony—any other felony—the sentence for that later
penalty would reflect the earlier conviction for a sex crime.
Had Mr. Johnson not committed a felony after the Act went
into effect, he wouldn’t be classified as a sexual predator today.
But he committed that later felony, and that conviction
produced the sexual predator classification of which he complains.
Mr. Johnson argues that the Act is retroactive because it
“attaches a new disability” to the 1983 conviction, citing to
Landgraf v. USI Film Products, 511 U.S. 244, 269 (1994). His argument
misreads the Landgraf opinion, which states more
fully, “Rather, the court must ask whether the new provision
attaches new legal consequences to events completed before
its enactment.” Id. at 269–70. The sequence of events that
dubbed Mr. Johnson a sexual predator wasn’t completed before
the Act’s enactment; the 2013 felony conviction came
later.
Mr. Johnson also points to Johnson v. United States, 529 U.S.
694, 699-701 (2000), in which the Supreme Court held that
when a defendant violates a term of his post-custodial supervision,
courts considering an ex post facto challenge “attribute
postrevocation penalties to the original conviction.” Id. at 701.
But Mr. Johnson isn’t here because of his 1983 sentence; that
sentence, including the requirement of registration, expired
long ago. He became a sexual predator as a collateral consequence
of his 2013 sentence, not through enforcement or modification
of his 1983 sentence.
Mr. Johnson is right that his 2013 theft conviction
wouldn’t have triggered sexual predator status but for the
1983 rape conviction. But just as the defendant Justice Jackson
No. 16-3189 9
discussed, it was Mr. Johnson’s post-Act felony that caused
today’s problems; his prior criminal record simply increased
the consequences of the 2013 conviction—“a stiffened penalty
for the latest crime.” Gryger v. Burke, 334 U.S. at 732.
At least as applied to Mr. Johnson, the Illinois Sex Offender
Registration Act doesn’t offend the Constitution’s ex
post facto clause because it doesn’t apply retroactively.

Outcome: The judgment of the district court is AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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