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.
Milwaukee County Circuit Court Judge John Franke’s ruling last week upholding the constitutionality of both of Franklin’s ordinances restricting where sex offenders can live or congregate is surprising for a few reasons, including the fact Franke’s quite liberal and he has ruled in favor of sex offenders in the past.
The most surprising aspect of Franke’s ruling to me after digging through his 30-page decision is that it’s apparent he has problems with the merit of the ordinances. Even so, he realized that he’s a member of the judicial branch of government and made the proper decision not to legislate from the bench.
Throughout his ruling, Franke makes references to issues he has with the substance and motives of the Franklin ordinances. However, after each concern raised, he then offers a qualifier, a reason why he can’t support the arguments raised by Steve Hanke, the offender who moved into Franklin in violation of the ordinances. Let’s go through the court document.
Hanke contended that restrictions like those in the Franklin ordinances “actually increase the risk that a child will be sexually assaulted.” In addressing Hanke’s claim, Franke’s sentiment about the Franklin ordinances, I believe, comes through:
"The 'evidence' relied on by the defendant is a confusing mix of reports, studies, expert opinions and logical arguments, some of which are conveyed to the court through press releases and newspaper articles. This evidence has not been the subject of a hearing or trial where the relevance and integrity of the studies and opinions could be explored. While defendant has no real 'evidence,' he does have rather compelling arguments as to why the restrictions are unlikely to accomplish their stated purpose. The material relied on by the defendant reflects a number of opinions held by professionals or groups with some degree of relevant expertise."
Then comes Franke’s qualifier:
"However, unless such 'expert opinions' reflect studies that establish facts and inferences that cannot be debated, such expert cannot trump the judgment of a legislative body."
Franke then cites three studies Hanke claims show that the location of a sexual offender’s residence is not at all related to whether or not that person will reoffend. Hanke writes, with what could be considered personal opinion:
"A review of these documents raises a host of obvious questions about whether any conclusions can be drawn concerning the effectiveness of Franklin’s residency restrictions. The studies themselves, as well as the expert opinions that recycle this limited data, only purport to demonstrate that there is no evidence that residency requirements work."
Then, the qualifier:
"But the burden is not on the City to prove that ordinances will work. The burden is on the defendant to prove that there is no rational basis for the belief that the ordinances will accomplish their intended purpose."
Franke then writes that Hanke made repeated references to evidence from Iowa that residency restrictions there led to a dramatic increase in the number of sex offenders who did not comply with state registration requirements. This is a common argument against residency rules. Hanke also argued restrictions work against rehabilitation efforts. Franke’s response:
"As troublesome as these concerns may be, a court cannot give them weight unless the defendant demonstrates by undisputed evidence that the law will do more harm than good. No such evidence exists in this case."
Next come Hanke’s argument that in the majority of child sexual assaults, the perpetrator has a trusty relationship with the victim, an argument the city of Franklin didn’t dispute. Franke writes:
"Suggesting that the typical child sex offender poses a risk of assaulting children as they walk home from school creates a bogeyman that does not really exist. Leaders who take credit for keeping such bogeymen more than 2000 feet from a school unnecessarily promote fear and give the community a false sense of security. Protecting children from the real danger can only be accomplished by educating children about such things and by the efforts of parents and others who are close to a child."
Then, the qualifier:
"While these arguments might be persuasive as matter of public policy, they are ineffective as a matter of due process law. A city council is not constitutionally barred from attempting to solve a small part of a problem simply because it cannot or does not attempt to solve the 'larger' part of a problem."
Franke then jumps right back on his soap box:
"The Franklin ordinances neither eliminate nor minimize access to children, and significant 'common sense' questions arise as to whether residency restrictions make any difference. It seems reasonable to assume that child traffic increases as one gets closer to places children visit, but in a city where children reside in all neighborhoods, how much difference is there, and does a small reduction in access to children mean any reduction in the risk of an offense? It seems reasonable to assume that putting sex offenders slightly farther away from schools might make it slightly more difficult for an offender to go to that area, but is there any reason to think this reduces the risk of an assault? One does not need the defendant’s 'evidence' or expert opinions to question whether an offender inclined to assault a child stranger is most likely to commit the offense right near his home?
Is it possible that high child traffic actually reduces a sex offender’s 'opportunity'? Is the larger number of children found close to a school really worthy of more protection that a smaller number found farther away? If Franklin forces its share of sex offenders into the unrestricted zones, what are the risks to children living in those areas?"
Franke has left no doubt about how he feels about the Franklin ordinances from a policy standpoint. Then, his qualifier:
"Despite these obvious questions and perhaps because the answers are so obviously uncertain, a court cannot conclude with any degree of confidence that keeping sex offenders distant from places where children congregate will have no appreciable impact on the risk of a sexual assault."
Throughout his written ruling, Franke makes no reference with any specificity to Franklin’s arguments in support of its ordinances. Instead, he systematically outlines his concerns about Franklin’s restrictions. Then, one by one, he lays out why even with those reservations he can’t rule against Franklin and for Hanke.
If Franke was an elected member of a local municipality or a state legislator, I think it’s evident he’d vote against residency restrictions for sex offenders. What’s amazing is that Franke put what troubled him aside and based his decision, not on what was in the ordinances, but on whether the ordinances were constitutional.
Franke’s ruling is amazing because of his restraint in exhibiting judicial activism. For that, Franke deserves credit, and many thanks.
THE DETAILS OF THE FRANKE RULING