Kevin Fischer is a veteran broadcaster, the recipient of over 150 major journalism awards from the Milwaukee Press Club, the Wisconsin Associated Press, the Northwest Broadcast News Association, the Wisconsin Bar Association, and others. He has been seen and heard on Milwaukee TV and radio stations for over three decades. A longtime aide to state Senate Republicans in the Wisconsin Legislature, Kevin can be seen offering his views on the news on the public affairs program, "InterCHANGE," on Milwaukee Public Television Channel 10, and heard filling in on Newstalk 1130 WISN. He lives with his wife, Jennifer, and their lovely baby daughter, Kyla Audrey, in Franklin.
I have read and dissected the 30-page decision handed down on July 2nd by Milwaukee County Circuit Court Judge John Franke in City of Franklin v. Steven Hanke. Franke ruled in favor of Franklin’s ordinances that restrict where sex offenders can live or congregate. Hanke has been in violation of the ordinances sine he moved into a home less than 600 feet from a Franklin middle school over a year ago. Over the next few days, I’ll be blogging about some of the aspects of Franke’s ruling that I find noteworthy.
When I discussed the details of this case and the ruling last week on WISN filling in for Mark Belling, I got some of the obligatory sex offender sympathizer calls. Not once did they mention the victims, and their mantra was predictable when referring to the offenders:
“But they’ve got to live somewhere…”
From Franke’s decision:
Defendant (Hanke) contends that Franklin’s residency restriction “infringes upon Mr. Hanke’s fundamental right to liberty and property, by restricting where he may or may not live.” He simply presumes that a person has a right “to live where he wants to” and offers no argument as to why this right qualifies as fundamental for purposes of the Due Process Clause.
The notion that there is a right to “live where we want” has a certain superficial appeal, but on closer analysis it is not a right at all, much less a fundamental one. Our legal traditions have not recognized an individual’s right to live wherever he chooses. We have no right to live in areas the government has set aside for parks, or schools or public activities. When the government condemns a citizen’s land for a highway, the citizen’s “right to live where he wants” has been compromised, but the power of eminent domain is not subject to “strict scrutiny.” Laws often limit how close to the water a person can build a house, or how many different unrelated family members can reside together. Minimum lot sizes and building requirements effectively preclude3 people of modest means from residing in many areas.
To the extent the ordinances are “unfair” to the defendant, it is not because they prevent him from living where he wants, but because they prevent him from living in areas where most people are entitled to live. Such a claim of unfairness does not raise an issue of substantive due process, but rather a q question of equal protection based on the right to be treated equally by the government when it comes to choosing a place to live.
Franke noted Hanke did not choose a claim of equal protection, but even if he had, Franke wrote:
An equal protection argument would fail for the same reasons the defendant’s due process argument fails.
Finally, as Franke noted in his decision, Franklin’s restrictive ordinances only apply to two-thirds of the city limits.
“But they’ve got to live somewhere…”
Sure they do. As long as it’s not within 2000 feet of a school, library, day care center, or any other restricted areas in the ordinances, and as long as these creeps keep their hands to themselves.