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.
For the past 10 days, I have highlighted what I believe were the top Franklin news stories of the past year.
Today, I unveil what I believe was the #1 story in our city in 2007 because it affected our most prized commodity: our children. In fact, this story had a potential impact on every child in the state of Wisconsin. The #1 Franklin story, the city's victory in its lawsuit against sex offender Steve Hanke, was far more important than any election, ribbon-cutting, or silly nickname.
One year ago today, I blogged my New Year wishes for convicted sex offender Steve Hanke…
“For the convicted sex offender who has gone to court to try to live in Franklin 600 feet away from a middle school in defiance of a Franklin ordinance, I wish the following in 2008:
An appearance before a court or judge that has some common sense, the one way ticket out of Franklin you deserve.
And may you never, ever harm another innocent child because if you do, I fear you'll slip through the cracks again because of an all-too liberal judicial system.”
In June of 2007, convicted, but now released sex offender Steven Hanke purchased a home in the 8200 block of South 77th Street in Franklin. Hanke was sentenced to nine years in prison in 1996 for second-degree sexual assault.
Problem: Hanke moved into his Franklin several months after the city had passed a milestone ordinance severely restricting where sex offenders can live. Hanke lived not far from Forest Park Middle School in complete defiance of the Franklin ordinance, and now was refusing to move.
The city of Franklin filed a lawsuit against Hanke in an effort to force him out.
At stake was not only Franklin’s ordinance, but numerous other laws just like it that were patterned after Franklin’s and were now either in place or being considered in numerous communities around the state.
To truly understand the magnitude of this issue, some background is in order.
From an earlier blog of mine on Franklin’s top issues:
Franklin has been Wisconsin’s leader in the fight against sex offenders. It has had to be.
Not too long ago, busloads of Franklin residents stormed a public hearing at State Fair Park to protest a special state committee’s thought of building a facility in Franklin to house numerous sexually violent persons. Franklin was considered an ideal location, having the most open space in Milwaukee County.
The loud and strong stand by Franklin residents couldn’t be ignored. The special panel wrapped up its business without recommending any site in Milwaukee County for a sex predator house.
A flurry of activity ensued at the state Capitol. A key piece of legislation was approved and signed into law that killed funding for the facility for sexually violent persons and also disbanded the special committee assigned to find a location for the facility. Another bill signed into law makes first degree sexual assault of a child punishable by life in prison. Both bills were authored by Senator Mary Lazich.
After sailing through the state Senate, a bill requiring that the worst sex offenders in the state be monitored by Global Positioning System or GPS was finally approved after much wrangling in the Assembly and signed into law.
Still, Franklin officials worried that released sex offenders would be dumped in Franklin. Sparking that fear was the state allowing notorious offender Billy Lee Morford to travel back and forth between his northwest side Milwaukee home and Franklin for 18 months without properly notifying Franklin.
After several public hearings and a thorough legal review, the Franklin Common Council late last year approved an ordinance with tight restrictions on where sex offenders could go and live within the city limits of Franklin.
Other communities quickly took notice, with several surrounding municipalities and some out-state either approving or considering Franklin-like ordinances of their own.
The Franklin Police Department has already used the new city ordinance on restrictions to force offenders out of areas they’re not welcome. Several local web sites now feature links to the sex offender registry and the family Watchdog offender map.
So far, no one has challenged the constitutionality of Franklin’s ordinance, or any other Franklin-like ordinance around the state. If they do, they’re in for a battle.
Jim McCarthy, a member of the City Council in Wilkes-Barre, Pennsylvania wrote the following in a letter to the editor in American City and County Magazine. McCarthy was responding to an article that predator protection laws around the country are coming under fire. McCarthy writes:
“As one who has been trying for eight months to pass a law restricting where convicted sexual predators may reside or work in Wilkes-Barre, Pa., my research shows the majority of such laws have already passed court muster. Currently, 30 plus states, and hundreds of local communities, have passed such laws, most of them based on the “original” proposal passed by Iowa, which was upheld by the U.S. Eighth Circuit Court (see Doe vs. Miller), and Ohio's “Distance Marker” legislation, which was similarly upheld as constitutional by federal courts.
In challenges to the Iowa and Ohio laws, the courts have ruled that these laws do not infringe upon a person's rights in that they are a form of civil regulation and not a form of punishment, they are intended to protect children and are rationally related to that end, and they represent a rational argument that prohibiting sex offenders from places children congregate will advance a community's interest in protecting children. Two federal courts have upheld city actions to ban individual sex offenders from parks and recreation areas where children congregate.
There have been some isolated cases where a poorly written law was struck down by courts, but that was because the authors failed to do the research required to make their law iron-clad. It is up to us, the legislators, to make sure “they” do not have access to our little children, whose rights far outweigh the rights of someone who preys on the weakest of our society.”
The case of Hanke and the city of Franklin went before Milwaukee County Circuit Court Judge John Franke. Franke is a very liberal judge with a history.
In June of 2003, Franke released one of Wisconsin’s most notorious predators, four-time-convicted child molester Billy Lee Morford, to a home reportedly less than a mile from two schools and a park. Morford was the first sexual predator given supervised release in the city of Milwaukee.
In 1997, Franke granted predator Shawn Schulpius supervised release, contingent on the creation of a plan for housing and monitoring him in Milwaukee. But for more than two years, officials could not find supervised housing for Schulpius in the city. In 2000, Franke reversed himself, saying Schulpius didn't deserve release after all.
Why was this all so important?
The city of Franklin had a lot to lose if it did not prevail in this case. A ruling against the city would have essentially nullified the Franklin’s tough restrictive ordinance that communities all across the state are using as a model to pass their own similar laws. If Franklin lost this lawsuit, the teeth would have been taken right out of its ordinance and the fear that a facility to house numerous sexually violent persons could be built in Franklin would have started all over again.
On April 14, 2008, oral arguments were made in the case. I blogged:
"Arguments were made today before Milwaukee County Circuit Court Judge John Franke in the city of Franklin’s lawsuit against convicted sex offender Steve Hanke. Hanke moved into Franklin several months after Franklin adopted a strict ordinance on where released sex offenders can live.
I was not in the courtroom but concerned sources who were inform me of what transpired.
Franke acknowledged there is no dispute that Franklin’s ordinance has been violated. However, he identified three constitutional issues he’s considering.
1) Ex Post Facto
An ex post facto law is one that changes the legal circumstances of acts made or the legal status of facts and relationships that were in existence before the enactment of the law. It can, among other things, criminalize actions that were legal before committed, or add new penalties or terms.
2) Validation of due process – does the strict scrutiny test apply.
The strict scrutiny application comes up in two situations: when a fundamental constitutional right is infringed, or when a government action uses a suspect classification such as race or national origin.
3) Unconstitutional taking of property
Franklin City Attorney Jesse Wesolowski argued Franklin’s ordinance compliments state policy with regard to sex offender monitoring and management. Hanke’s attorney Andrew Arena said the ordinance is fear-based, unreasonable, and emotionally charged and therefore Franke could strike it down.
A bill has been proposed in the state Legislature to define high-risk sex offenders and child safety zones. Another bill would prohibit local municipalities from enacting ordinances like Franklin’s.
Franke submitted it might make more sense for the state to address the issues in a uniform manner.
Arena argued Franklin’s ordinance amounts to banishment, pointing to signs posted throughout the community and the negative treatment Hanke gets from his neighbors.
Franke responded that sex offenders can still work, visit, and travel in and through Franklin. In his view, banishment would mean that no offenders would be allowed in Franklin at anytime.
Franke then challenged Wesolowski about what the threshold is for prohibiting sex offenders. If all sex offenders were prohibited from living in Franklin, would that be constitutional? If Franklin allows them to live in only 30% of the city, is that constitutional?
The argument of residency vs. occupancy came up. What is the definition of residency? How does that differ from occupancy? Technically, Hanke can still own the property but not “reside” there. He could visit there. Could that, in essence, blow holes in the argument of unconstitutional taking of property?
Wesolowski also argued that Hanke’s presence in the neighborhood may result in decreased property values for the other residents and that represents a public nuisance. He added that zoning laws are in place to ensure the protection of property and that presents a reasonable basis for the ordinance.
Franke raised the question as to the notion of actual public safety vs. the public 'feeling' safe. Is it the responsibility of the government to make the public 'feel' safe?
Wesolowski contended that yes, under the constitutional provision of home rule, local municipalities can decide what constitutes “comfortable enjoyment” and “freedom of fear” in determining a public nuisance so long as it is reasonable."
In early July, Franke ruled in favor of the city of Franklin, a huge victory for not just the city of Franklin, but the entire state of Wisconsin. Ordinances that are in place right now to restrict where sex offenders can live or congregate in could remain in effect. Other cities, towns, and villages watching anxiously, waiting from the sidelines to see what would transpire could now move forward with their plans to adopt such ordinances.
Franklin actually has two ordinances that are very similar but deal with the same issue.
There’s an ordinance that deals with what Franklin City Attorney Jesse Wesolowksi described as a “public order.” This ordinance basically states that Franklin is taking these restrictive measures to protect its citizens, and then it also lists all the nuts and bolts, the details of the ordinance, the 2000 feet limits, and so on.
Then there’s the all-important zoning ordinance, and this is critical. This sealed the deal for a Franklin victory.
I’m told that it appears Judge Franke made his ruling based on Franklin’s zoning ordinance that includes all those nuts and bolts details, but was crafted and adopted based on statutes that allow municipalities like Franklin to pass laws that control its land use. This ordinance, that is almost identical to the 1st ordinance except for some legal terminology, saved the day for Franklin.
Also, Hanke presented in court at least 10 arguments that questioned the legality and constitutionality. Judge Franke found nothing to support any of those arguments.Franke also ruled against Hanke’s motion that the claims made by the city of Franklin were invalid.
What did it all mean?
#1- Franklin’s tough ordinance is constitutional.
#2- Other ordinances in other communities are safely in place.
#3- Other municipalities considering adopting such ordinances can safely move forward.
#4- Hanke had to move or face substantial fines, anywhere from $1 to $2500 per day for every day he was in violation of the ordinance.
A REMARKABLE RULING
Franke’s ruling upholding the constitutionality of both of Franklin’s ordinances restricting where sex offenders can live or congregate was 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.
On July 24, 2008, Franke ruled that Hanke had 60 days to move out of his Franklin home. Franke ruled:
1) Hanke’s presence in a restricted zone does constitute a nuisance.
2) There is cause for the issuance of an injunction for Hanke to move out of the designated restricted area. Franke believes the risk of recidivism is low in Hanke’s case, but substantial enough to warrant an injunction forcing Hanke to move.
3) Franklin’s ordinances impose fines ranging from $1 to $2500 per day for every day an offender is in violation. Franke imposed a fine $40 per day dating back to June 1, 2007 up until September 22, 2008. Hanke has 60 days to move out of the restricted area. That date would be September 22, 2008.
4) The judge stayed the imposition of fines until September 22, 2008, the latest date Hanke has to move out of the restricted area. If Hanke has not moved out by then, he will be fined $500 per day from September 22, 2008 and thereafter plus the $40 per day from June 1, 2007 to September 22, 2008 until he moves out.
Hanke asked for more time to find a place to live. His request was denied. Hanke did move out in time, barely, to a motel on Highway 100 in Greenfield. Ironically, Greenfield is grappling with whether or not to enact an ordinance similar to Franklin's.
Again, Franke’s ruling was amazing because of his restraint in exhibiting judicial activism. For that, Franke deserves credit, and many thanks. I have publicly criticized Judge Franke in the past and worried about how he would rule. He made the right decisions.
But there are other, bigger heroes, starting with the people of Franklin, the Franklin-based Citizens for a Safe Wisconsin, The Franklin Common Council and the Mayor, and especial Alderman Steve Olson, the architect of Franklin’s ordinance, and yes, state Senator Mary Lazich, who set the table for the creation of the Franklin ordinance through her collaboration with Citizens for a Safe Wisconsin to author anti-sex predator legislation that became law in Wisconsin.
The winners are every single child in the state of Wisconsin and their parents.
THE TOP 10 FRANKLIN STORIES OF 2008
1) FRANKLIN WINS, STEVE HANKE LOSES
2) MAYOR TAYLOR TAKES THE PLEDGE, AND KEEPS IT
3) WHAT A DIFFERENCE A YEAR MAKES
4) FRANKLIN'S UGLY MESS: FOUNTAINS OR THE FOXES
5) TOM TAYLOR IS RE-ELECTED....AND HOW
6) TWO INCUMBENT ALDERMEN LOSE RECOUNTS
7) BOOMGAARD OR BUST
8) THE FRANKLIN SCHOOL BOARD GETS TWO NEW MEMBERS
9) BUCKHORN LIVES TO SERVE ANOTHER DAY, AND ANOTHER, AND ANOTHER...
10) MAJOR OPENINGS AT THE SHOPPES AT WYNDHAM VILLAGE